Citation Nr: 1315704 Decision Date: 05/13/13 Archive Date: 05/15/13 DOCKET NO. 09-30 182 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent before January 9, 2008; in excess of 20 percent before January 9, 2013; and in excess of 40 percent effective January 9, 2013 for a service-connected low back disability consisting of lumbar spine degenerative disc disease with mechanical low back pain. 2. Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Veteran represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from July 1980 to April 1981. The procedural posture of this case is rather complex. The Board will outline the salient points below. This matter comes to the Board of Veterans' Appeals on appeal from December 2008 and March 2009 rating decisions of the RO. The RO initially granted service connection for mechanical low back pain by August 2006 rating decision, effective November 30, 2005, to which is assigned a 10 percent evaluation. In an April 2008 rating decision, the RO increased the evaluation to 20 percent effective January 9, 2008. In a December 2008 rating decision, the RO denied an evaluation in excess of 20 percent for the service-connected mechanical low back pain. In December 2008, the Veteran filed a claim of service connection for degenerative disc disease of the lumbar spine. By March 2009 rating decision, the RO denied service connection for lumbar spine degenerative disc disease. In May 2011, the Board remanded both issues to the RO for further development of the evidence. Subsequently, in September 2012, the Board granted service connection for lumbar spine degenerative disc disease and remanded the entire matter of entitlement to an increased rating for a low back disability, to consist of lumbar spine degenerative disc disease with mechanical low back pain. In a February 2013 rating decision, the RO recharacterized the Veteran's service-connected low back disability and degenerative disc disease, thoracolumbar spine, to which it assigned a 40 percent evaluation effective January 9, 2013. From a thorough review of the record, the Board concludes that the Veteran has been seeking an increased rating for her back disability no matter its technical characterization or specific diagnosis since filing a claim for increase in June 2007. The Board recognizes that increased ratings have been granted during the course of this appeal. However, although each increase represents a grant of benefits, the United States Court of Appeals for Veterans Claims (Court) has held that a decision awarding a higher rating, but less that the maximum available benefit does not abrogate the pending appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). Thus, this matter continues before the Board. The Board observes that the RO has not yet dealt with the matter of TDIU. As it appears to have been raised by the record, the Board is remanding it for further development consistent with the Court's decision in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether TDIU as a result of that disability is warranted. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Before January 9, 2008, the Veteran's thoracolumbar spine disability was manifested by no more than mild symptoms and forward flexion of the thoracolumbar spine to 85 degrees. 2. Between January 9, 2008 and January 8, 2013, the Veteran's thoracolumbar spine disability was manifested by no more than forward flexion that was between 30 and 60 degrees and pain with normal posture and gait. 3. Effective January 9, 2013, the Veteran's thoracolumbar spine disability has been manifested by no more than forward flexion to 20 degrees without ankylosis. CONCLUSION OF LAW The criteria for entitlement to a disability evaluation in excess of 10 percent before January 9, 2008, in excess of 20 percent between January 9, 2008 and January 8, 2013, and in excess of 40 percent effective January 9, 2013 for the Veteran's service-connected chronic thoracolumbar spine disability consisting of lumbar spine degenerative disc disease with mechanical low back pain have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5243-5237 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), in this case the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in July 2007 that fully addressed all three notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the Veteran of what evidence was required to substantiate the claim and of the Veteran's and VA's respective duties for obtaining evidence. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A ; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the service treatment records, relevant VA clinical records, and private medical records. The Veteran was afforded adequate VA medical examinations in furtherance of the claim. Significantly, neither the Veteran nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Standard of Review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 4.3 (reasonable doubt to be resolved in veteran's favor). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54 . Increased Ratings Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected low back disability consisting of lumbar spine degenerative disc disease with mechanical low back pain has been rated 10, 20, and 40 percent disabling at various points during the appeal period under the provisions of Diagnostic Code 2543-2537. 38 C.F.R. § 4.71a. With the possible exception of intervertebral disc syndrome, disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine. The General Rating Formula for Diseases and Injuries of the Spine provide as follows: 100% Unfavorable ankylosis of the entire spine; 50% Unfavorable ankylosis of the entire thoracolumbar spine; 40% Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; 30% Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine; 20% Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; 10% Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (2012) (unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides as follows: A 60 percent disability rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. A 40 percent disability rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 20 percent disability rating is warranted with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 10 percent disability rating is warranted with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. Note (1): For purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. For purposes of VA compensation, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. 38 C.F.R. § 4.71, Plate V (2012). On July 2006 VA spine examination, the Veteran reported constant low back pain that was an eight on a scale of one to 10. There were radicular symptoms, and the Veteran indicated that lifting exacerbated her low back pain. The Veteran was able to stand for two hours, sit for one hour, and walk one mile, but all three activities exacerbated her low back pain. As well, lying in bed for four hours and coughing exacerbated low back pain. The Veteran was independent in the activities of daily living and was fully ambulatory. She did not require a back brace. In the previous year, she had missed only two days of work due to low back pain. Objectively, gait and ambulation were normal. Forward flexion of the lumbar spine was to 90 degrees with pain starting at 85 degrees. Extension was to 30 degrees with pain starting at 25 degrees. Right lateral banding was to 30 degrees without pain. Left lateral bending was to 30 degrees with pain starting at 25 degrees. Bilateral lateral rotation was to 30 degrees without pain. The examiner observed tenderness over the lumbar spine. Back musculature was unremarkable. The examiner diagnosed mechanical low back pain and indicated that a low back X-ray study conducted in July 2006 showed minimal scoliosis; the vertebral bodies, disc spaces, and sacroiliac joints were unremarkable. There is no other evidence that is pertinent to the period before January 9, 2008 that reflects a disability picture different from that which is indicated in the July 2006 VA examination report. Based on that evidence, a 20 percent evaluation is not warranted before January 9, 2008 because the symptomatology associated with a 20 percent evaluation is absent. 38 C.F.R. § 4.71a, Diagnostic Code 5243-5237. Specifically, forward flexion of the thoracolumbar spine was greater than 60 degrees, the combined range of motion of the thoracolumbar spine was greater than 120 degrees, and there was no noted muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. Indeed, the Veteran's scoliosis was said to be slight, and it has not been attributed to the service-connected low back disability. The Board observes that incapacitating episodes were not shown before January 9, 2008. As such, the Board need not consider an evaluation in excess of 10 percent based on incapacitating episodes. The following discussion concerns the period between January 9, 2008 and January 8, 2013. During a March 2008 VA orthopedic consult, the Veteran indicated that low back symptoms were exacerbated by prolonged standing or sitting. The examiner observed that the Veteran walked around the examining room with no particular difficulty. There was tenderness over the thoracolumbar spine, but the Veteran had "generally good" range of motion with some mild pain. The examiner noted that an X-ray study conducted that month showed some questionable mild decreased disc space at L5-S1, and there was subtle evidence of some degenerative changes about the spine. A March 2008 magnetic resonance imaging (MRI) of the thoracolumbar spine showed multiple level degenerative changes and lower lumbar spondylosis. In January 2009, the Veteran underwent a sacroiliac joint injection that provided only two days' relief. On February 2009 VA medical examination, the Veteran reported pain and stiffness in the morning as well as morning flare-ups with pain that was a 10 on a scale of one to 10 lasting an hour until analgesics began to take effect. There was radicular pain. The Board notes that service connection is in effect for left lower extremity radiculopathy. There had been no incapacitating episodes in the previous 12 months. There was no gait abnormality. There was spinal pain, stiffness, and occasional spasms. The Veteran indicated that she could sit or stand for only 15 minutes, walk two blocks, and lift only five pounds. She indicated that she could not camp, do dishes, or clean the house. As to occupational impact, the Veteran indicated that she could not stock shelves. There was minimal tenderness to palpation of the thoracolumbar spine. Posture and gait were normal. Forward flexion was to 80 degrees with pain, extension was to 30 degrees with pain. Left side bending was to 20 degrees with pain. Right side bending was to 30 degrees. Left rotation was to 20 degrees, and right rotation was to 30 degrees. According to the examiner, there was no additional functional limitation due to flare-ups, painful motion, weakness, excess fatigability, lack of endurance, or incoordination. The Veteran was employed. She indicated that she had lost 20 to 40 workdays in the previous year due to low back pain. The Veteran had been working for her employer on a part-time basis for three years. The examiner diagnosed mechanical low back pain with degenerative changes. A March 2009 MRI of the lumbar spine revealed mild broad-based posterior disc bulge with no significant spinal canal or neuroforaminal narrowing. The visualized paraspinal tissues were unremarkable. During VA treatment in June 2009, the Veteran complained of low back pain with prolonged sitting or standing. At that time, gait was normal. Forward flexion was to 50 degrees, extension was to 10 degrees, and rotation was normal. There was some sacroiliac joint tenderness. In January 2011, a VA nurse practitioner suggested that the Veteran quit her job due to low back pain. In February 2011, the Veteran and a VA nurse practitioner again discussed resignation. On June 2011 VA medical examination, the Veteran indicated that low back pain was an eight to 10 on a scale of one to 10. Prolonged standing, sitting, bending, and walking increased low back pain. The Veteran was employed by the same employer for the previous six years. She worked at a supermarket between 25 and 35 hours a week and had to sit in the manager's office at least once per shift due to low back pain. Posture was normal, but gait was slow due to low back pain. Flexion was to 40 degrees with pain from 10 to 40 degrees. Extension was to 12 degrees with pain throughout. Left a right side bending was to 15 degrees with pain. Left and right rotation was to 15 degrees with pain. There was no additional functional limitation to include further loss of range of motion during flare-ups or with repeated range of motion exercises. There was no weakness, lack of endurance, incoordination, or fatigability. The examiner noted that a December 2010 MRI revealed, in pertinent part, mild degenerative disc disease. A June 2011 lumbar spine X-ray study showed minimal degenerative changes. The examiner diagnosed chronic mechanical low back pain and lumbar degenerative disc disease with chronic lumbar discogenic pain. The Veteran provided a lay statement from her boyfriend. According to him, the Veteran was unable to do many of the tasks required to maintain a single family home such as shoveling snow, yard work, and gardening. As well, she could not do laundry and other household tasks. The Veteran's posture was stooped, and the boyfriend had to help her get out of bed in the morning. She enjoyed reading but had to sit in a chair with heating pads. The Board is sympathetic to the Veteran's symptoms to include pain on motion, slow gait, and difficulty with household tasks. However, her disability picture does not rise to the severity needed for a 40 percent evaluation at any time before January 9, 2013. 38 C.F.R. § 4.71a, Diagnostic Code 5243-5237. During the period from January 9, 2008 and January 8, 2013, the Veteran's forward flexion was not to 30 degrees or less. Moreover, favorable ankylosis of the entire thoracolumbar spine was not shown. In the absence of these manifestations during the period at issue, a rating in excess of 20 percent for the service-connected low back disability is not warranted. On January 9, 2013, the Veteran was afforded yet another VA examination. The Veteran described her primary symptom as severe low back pain with radicular pain. There was some tenderness to palpation of the thoracolumbar spine. Posture was normal but gait was very slow due to low back pain. Flexion was from zero to 20 degrees with pain at 20 degrees. Extension was to 10 degrees with pain at 10 degrees. Left and right lateral flexion was to 15 degrees with pain at 15 degrees. Left and right lateral rotation was to 15 degrees with pain at 15 degrees. There was no additional loss of range of motion and no additional functional impairment with repeated range of motion exercises. The examiner diagnosed chronic mechanical low back pain and lumbar degenerative disc disease. The examiner concluded that the Veteran did not suffer from intervertebral disc syndrome. The examiner indicated that the service-connected low back disability had an impact upon the Veteran's ability to work because she had missed 15 workdays during the previous 12 months. In a February 2013 rating decision, the RO assigned a 40 percent rating to the service-connected low back disability effective January 9, 2013. The record contains no other evidence dated after January 9, 2013. A higher evaluation of 50 percent is not warranted effective January 9, 2013 because unfavorable ankylosis of the entire thoracolumbar spine is not present. 38 C.F.R. § 4.71a, Diagnostic Code 5243-5237. The Board notes that an increased rating pursuant to the criteria for intervertebral disc syndrome need not be considered because incapacitating episodes and physician-prescribed bed rest are not apparent from the record. In the present case, it should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 (2012) allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 (2012) provides that consideration also be given to weakened movement, excess fatigability, and incoordination. Functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements has not been shown. As well, all of the Veteran's symptoms have been taken into account in consideration of whether an increased rating is warranted. Thus, these provision need not be considered further. See 38 C.F.R. § 4.14 (2012) (the regulation that prohibits pyramiding, namely being compensated for the same symptom more than once). In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) , but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. Extraschedular Consideration The Board has considered whether an extraschedular evaluation would have been warranted for lumbar spine disability. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Before discussing further entitlement to an extraschedular evaluation, the Board notes that it has considered Mittleider v. West, 11 Vet. App. 181 (1998) and has attributed all potentially service-connected symptoms to one service-connected condition or another. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. The Board finds that the schedular rating criteria contemplate the Veteran's service-connected lumbar spine disability. The service-connected lumbar spine disability rating criteria specifically provide for ratings based on the presence of painful arthritis, limitation of motion of the spine (including due to pain and other orthopedic factors; see 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca), and incapacitating episodes. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1 (2012). In this case, the problems reported by the Veteran (limitation of motion, pain on standing and sitting, and not being able to lift heavy objects) are specifically contemplated by the criteria discussed above, including the effect on her daily life. In the absence of exceptional factors associated with the Veteran's service-connected thoracolumbar spine disability, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For these reasons, the Board finds the weight of the evidence is against a finding of an increased disability rating in excess of 10, 20, and 40 percent (at various times during the appeal period) for the service-connected thoracolumbar spine disability. As explained above, to the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit- of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. ORDER An evaluation in excess of 10 percent before January 9, 2008; in excess of 20 percent before January 9, 2013; and in excess of 40 percent effective January 9, 2013 for a service-connected low back disability consisting of lumbar spine degenerative disc disease with mechanical low back pain is denied. REMAND In Rice, the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. In this case, the evidence reflects that a VA nurse practitioner suggested that the Veteran quit her job, that the Veteran had to take breaks at work, and that the Veteran missed work due to the service-connected thoracolumbar spine disability. As such, the issue of entitlement to TDIU is raised by the record. Hence, the issue is properly before the Board. A review of the record shows that further development is needed to properly adjudicate the TDIU claim. The law provides that a TDIU may be granted upon a showing that the veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his or her service-connected disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). The record shows that the Veteran has to sit in her manager's office at least one per shift, that she misses work due to the low back disability, and that a nurse practitioner suggested that she stop working due to the service-connected thoracolumbar spine disability. While the Veteran has been afforded VA examinations, an opinion as to her unemployability and the effect of her service connected disabilities, in toto, on her employability was not rendered. The Board finds that the Veteran should be afforded an appropriate VA examination to determine whether she is unable to secure or maintain substantially gainful employment as a result of her service-connected disabilities. In addition, the Veteran has not received VCAA notice regarding TDIU claims. Thus, corrective action by the RO in this regard is necessary. Accordingly, the case is REMANDED to the RO via the AMC for the following action: 1. Send the Veteran a VCAA notice letter that pertains expressly to claims of entitlement to TDIU. 2. Schedule a VA medical examination for an opinion regarding whether it is at least as likely as not ( 50 percent or greater likelihood) that the Veteran's service-connected disabilities, in and of themselves, prevent her from securing or maintaining substantially gainful employment. A full rationale for all opinions and conclusions should be provided and a resort to speculation should be avoided. The examination report must indicate whether pertinent records in the claims file were reviewed in conjunction with the examination. 3. After the development requested above has been completed to the extent possible, the record should be reviewed. If the benefit sought on appeal remains denied, the Veteran and her representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. (CONTINUED ON NEXT PAGE) The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs