Citation Nr: 1317859 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 09-26 852 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine (low back disability), evaluated as 20 percent disabling prior to March 28, 2013 and 40 percent disabling thereafter. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. D. Jackson, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from November 1984 to July 1988, from September 1989 to October 1993, and from February 1998 to September 2000. He had periods of active duty for training (ACDUTRA) including from September 14, 2003, to September 25, 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA). The Board remanded the case in April 2012, July 2012, and February 2013 for further evidentiary development. During the most recent remand period, in April 2013, the AMC granted service connection for radiculopathy of the left and right lower extremities, assigning separate 10 percent ratings for each, effective March 28, 2013. And since the Veteran did not, in response, appeal either the ratings or effective date assigned for those disabilities, they are not at issue. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The AMC also increased the rating for the low back disability to 40 percent, also effective March 28, 2013. Even though the RO increased the schedular rating for the Veteran's disability during the appeal, the issue of entitlement to a higher rating remained on appeal, as the Veteran has not indicated his desire to withdraw that issue. See AB v. Brown, 6 Vet. App. 35 (1993). The Veteran submitted additional evidence and statements after the issuance of the most recent supplemental statement of the case (SSOC) without a waiver of RO review in accordance with 38 C.F.R. § 20.1304. The evidence submitted at this time (namely VA records dated in 2012) is duplicative of evidence previously considered by the RO in 2013. Therefore, the Board finds that a remand for consideration solely of these documents would serve no useful purpose. In a 2013 statement, the Veteran indicated he had bowel and bladder impairment which was related to his low back disability. This matter is referred to the RO for appropriate development. It is not inextricably intertwined with the increased rating matter as any related residuals would be separately rated. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2). The matter of entitlement to a TDIU is REMANDED to the Appeals Management Center (AMC). FINDINGS OF FACT 1. Prior to March 28, 2013, the medical evidence indicates the Veteran's lumbar spine disability was manifested by pain, stiffness, weakness, fatigue, and limitation of motion with no ankylosis; there were incapacitating episodes having a total duration of no more than two weeks in a twelve-month period; there was no competent and credible evidence of any associated neurological disabilities. 2. As of March 28, 2013, the preponderance of the medical evidence indicates the Veteran's lumbar spine disability was manifested by pain, radiculopathy and intermittent pain of the lower extremities, with limited motion; there is no evidence of favorable ankylosis or incapacitating episodes having a total duration of at least six weeks in a twelve-month period. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent prior to March 28, 2013 for the lumbar spine disability have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321 (b)(1), 4.16, 4.3, 4.71a, Diagnostic Codes (DC's) 5237, 5242 (2012). 2. The criteria for an evaluation in excess of 40 percent for the lumbar spine disability from March 28, 2013 to the present have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 38 C.F.R. §§ 3.321(b)(1), 4.16, 4.3, 4.71a, DC's 5237, 5242 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act (VCAA) The VCAA, codified, in part, at 38 U.S.C.A. § 5103, was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. § 3.159. VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) held in Pelegrini v. Principi, 18 Vet. App. 112 (2004) that to the extent possible the VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before an initial unfavorable decision on a claim for VA benefits. Pelegrini, 18 Vet. App. at 119-20; see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was provided notice of the VCAA in November 2008. The VCAA letter indicated the types of information and evidence necessary to substantiate the claim, and the division of responsibility between the Veteran and VA for obtaining that evidence, including the information needed to obtain lay evidence and both private and VA medical treatment records. In this letter, the Veteran also received notice pertaining to the downstream disability rating and effective date elements of his claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also Mayfield and Pelegrini, both supra. All relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained, to the extent possible. The evidence of record includes service treatment records, private medical records, VA outpatient treatment reports, adequate VA examination and opinion as well as statements from the Veteran and his representative. In this regard, pursuant to the Board's February 2013 remand directive, the reviewed additional VA treatment records pertaining to the lumbar spine disability. The Veteran was afforded VA examination in March 2013 to address the severity level of the Veteran's service-connected lumbar spine disability. To that end, an examination for rating purposes should contain sufficient detail and reflect the whole recorded history of a Veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); 38 C.F.R. § 4.2. The Board finds that the VA examination, is more than adequate, as it was predicated on a full reading of the VA medical records in the Veteran's claims file. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4). Likewise, the Board finds that there was compliance with its April 2011 remand directive. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Increased Rating Disability evaluations are determined by the application of a schedule of ratings based on average impairment in earning capacity. 38 U.S.C.A. § 1155. Requests for increased disability ratings require consideration of the medical evidence of record compared to the criteria in the VA Schedule for Rating Disabilities. If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). If there have been changes in the severity of the disability, the Board will need to "stage" the rating to compensate the Veteran for this, irrespective of whether the rating for the disability is an established rating versus initial rating. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 . The Veteran's lumbar spine disability was rated 20 percent disabling from October 21, 2008, and 40 percent disabling from March 28, 2013. The Veteran claims his lumbar spine disability is more severe than currently rated. The Veteran's Disabilities affecting the spine are rated based on either the General Rating Formula for Diseases and Injuries of the Spine or on the basis of incapacitating episodes, whichever method results in a higher rating when all disabilities are combined under 38 C.F.R. § 4.25. Under the Formula for Rating degenerative disc disease (DDD), i.e., Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, a 10 percent rating requires incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months; a 20 percent rating requires incapacitating episodes of at least two weeks but less than four weeks; a 40 percent rating requires incapacitating episodes of at least four weeks but less than six weeks; and a 60 percent rating requires incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. See also Note(1) in 38 C.F.R. § 4.71a, DC 5243, defining an incapacitating episode as a period of acute signs and symptoms due to IVDS requiring bedrest prescribed by a physician and treatment by a physician. The General Rating Formula for Diseases and Injuries of the Spine covers DCs 5235-42. DC 5242, in particular, concerns degenerative arthritis of the spine (hence, the arthritic component of the Veteran's low back disability) and indicates to see also DC 5003 since it, too, pertains to rating degenerative arthritis (hypertrophic or osteoarthritis). DC 5003, as well as DCs 5235-5242, indicates to rate the arthritis on the basis of the extent it causes limitation of motion of the specific joint or joints affected. DCs 5235-42, since specifically concerning limitation of motion of the spine, provide a 10 percent rating where forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees, the combined range of motion of the thoracolumbar spine is between 120 and 235 degrees, or where muscle spasm or guarding does not result in an abnormal gait or abnormal spinal contour. A 20 percent rating is assigned where forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or where muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned if evidence shows forward flexion of the thoracolumbar spine limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine, a 50 percent rating if the evidence shows unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating if the evidence shows unfavorable ankylosis of the entire spine (that is, when additionally considering the adjacent cervical segment). Ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999). See, too, Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. Moreover, Note (5) to DCs 5235-5242 indicates that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire lumbar spine, entire thoracolumbar spine, or the entire spine is fixed in flexion or extension. Fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis. This clearly was not the situation here. In general, evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. See 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. See 38 C.F.R. § 4.45. For reasons explained immediately below, upon review of all pertinent medical evidence, the Board concludes the Veteran is not entitled to an increased rating for his spine disability at any time period. For the purposes of clarity, the discussion below is separated into different time periods. Regardless of the time period or regulations examined, however, the Board notes the VA must consider all the evidence of record to determine when an ascertainable increase occurred in the rated disability. See Hazan v. Gober, 10 Vet. App. 511 (1997); see also Swanson v. West, 12 Vet. App. 442 (1999). Prior to March 28, 2013 The RO received the claim for an increased rating in October 2008. For this period the Veteran was assigned a 20 percent evaluation for his lumbar spine disability. An examination was conducted in November 2008. The Veteran complained of daily back stiffness associated with pain and weakness. His pain was exacerbated on walking, prolonged sitting, and when turning during sleep . He also reported pain that radiated to his hips, buttocks, and hips. The Veteran reported that he had 2 incapacitating episodes in the previous year that lasted 3 days. He indicated that the ER physician at the VA prescribed bed rest. On range of motion study, forward flexion was decreased to 60 degrees; extension was to 20 degrees; left and right lateral flexion was 20 degrees; right and left lateral rotation was 25 degrees. There was pain noted on motion. All reflexes were 2. There was a positive leg raise test, but the examiner indicated there was no sign of IVDS. With respect to the DeLuca criteria, the examiner found no fatigue, weakness, lack of endurance, incoordination, spasm, effusion, instability, weakness, tenderness, redness, heat, abnormal movement, or guarding of movement. Magnetic resonance imaging (MRI) revealed a mildly diffuse disc bulge. Stenosis was noted at the L4-L5 level. There was right central disc herniation with mild impingement and displacement of the right S1 nerve root. In December 2008, the Veteran was seen at a private hospital for low back pain complaints. He reported low back pain that radiated to both legs. There was generalized back tenderness upon palpation without swelling, bruising, or gross deformity. On the neurological examination, his sensory and motor functions were considered intact. The diagnostic impression was exacerbation of lower back pain. He was prescribed Vicodin, Motrin, and Skelaxin. An MRI conducted in April 2012 revealed degenerative disc desiccation at the L5-S1 level. The proximal aspect of the right S1 nerve root was minimally compressed and posteriorly displaced by a disc protrusion. A mild degree of degenerative stenosis was noted at the L5-S1 intervertebral nerve root canals bilaterally. A VA examination was conducted in May 2012. The veteran stated that his back pain causes difficulty with all activities of daily activities. For instance, he is unable to walk more than 100 feet before fatigue sets in. On examination, he had 50 degrees of flexion; 20 degrees of extension; 30 degrees on left and right lateral flexion ; and right and left lateral rotation was 30 degrees. Pain was noted on all motions. On repetitive testing there was no additional limitation of motion. He had normal strength on hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and great to extension. There was no evidence of muscle atrophy. Ankle and knee deep tendon reflexes were absent. Straight leg raising was negative, bilaterally. There was no radiculopathy. He had no other neurological abnormalities. VA outpatient records dated between 2008 and 2012 show that he continued to obtain medical services by way of pain management and physical therapy. Although there were some findings of increased limitation of motion, the predominant findings have demonstrated that the Veteran does not meet the criteria for a higher rating in that his forward flexion has not been 30 degrees or less. Further, it was consistently noted that the Veteran's subjective complaints were not supported by the objective findings. In February 2009, it was noted that the Veteran complained of radiating pain; however, this was not reproducible at the time of testing. It was also noted that his range of motion was significantly decreased, grossly 10-15 degrees on all planes. However, when he was distracted he was able to lift belongings off the floor and flex past the above range. In January 2010, the Veteran was only able to bend to 10 degrees. Significantly, the examiner indicated that the examination findings were inconsistent; thus, they may not be used to rate the Veteran's disability. As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Generally, examiners have indicated that the Veteran's subjective complaints are inconsistent with the objective findings. While the Veteran is competent to report symptoms such as pain, he is not able to provide competent evidence as to the overall severity of his back disability to include the extent of his limitation of motion. The Board finds that the objective medical findings of record to be more probative. The Board has considered Diagnostic 5243 as to the total duration of incapacitating episodes over the preceding 12 months. The Veteran reported at the November 2008 examination that a VA emergency room physician found that he was incapacitated and prescribed bed rest. However, there is no evidence that any VA or private physician prescribed bed rest for the Veteran's lumbar spine disability prior to May 2013. As such, a disability rating greater than 20 percent under Diagnostic Code 5243 is not warranted. Furthermore, as noted under Note (1) of the General Rating Formula, VA must evaluate any associated objective neurologic abnormalities separately under an appropriate diagnostic code. However, the VA examiners specifically found no neurologic deficit related to his lumbar spine disability. The Veteran also was not found to have any bowel or bladder impairment associated with his spine disabilities. Hence, there was no competent credible evidence of any separately ratable neurological manifestations of service-connected lumbar spine disability. As of March 28, 2013 As of March 28, 2013, the Veteran has been assigned a 40 percent evaluation for his lumbar spine disability based on unfavorable ankylosis. Having considered the evidence of record, the Board finds that the Veteran is not entitled to an evaluation in excess of 40 percent for his lumbar spine disability from March 28, 2013 forward. A VA examination was conducted in March 2013. The Veteran reported his medical history. His symptoms included pain and back spasm. He indicated that the pain wrapped around his left flank and extended to his abdominal area. The pain sometimes radiated to his left buttock, hip, groin, and leg. The range of motion was as follows: forward flexion 0 to 30 degrees; extension 0 to 10 degrees; left lateral flexion 0-15 degrees, right lateral flexion 0 to 20 degrees; and left and right lateral rotation 0 to 20 degrees. All motions were limited by pain which began on movement. With repetitive use, his degree of motion remained the same, except for right lateral flexion, which was reduced to 15 degrees. There was guarding on movement. He had an abnormal gait. He had normal strength on hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and great to extension. There was no evidence of muscle atrophy. Ankle and knee deep tendon reflexes were 2+. The sensation to light touch was normal. Straight leg raising was negative, on the right and positive on the left. There was mild intermittent pain and radiculopathy on the lower right extremity; and moderate pain and radiculopathy on the left lower extremity. The examiner indicated that this involved the sciatic nerve. As noted above, based on this examination, service connection was granted for radiculopathy to the lower extremities. His rating for low back disability was also increased to 40 percent, effective the date of the VA examination. Applying the rating criteria, the above evidence demonstrates the Veteran is not entitled to an evaluation greater than 40 percent for orthopedic manifestations of his lumbar spine disability under the General Rating Formula for Diseases and Injuries of the Spine. An evaluation greater than 40 percent is not warranted as there is no objective evidence of unfavorable ankylosis of the entire spine during this period. Id. In considering DeLuca, the Veteran reported that he was suffering from constant lumbar spine pain. He also reported flare ups, and indicated he was prescribed pain medications. As noted the Board is unable to gauge his pain based on his statements due to his unreliability. The March 2013 VA examination indicated that there was no objective evidence of muscle atrophy or loss of muscle tone. He also had 5/5 strength despite his limited motion. The Board acknowledges that the Veteran contends his lumbar spine disability should be rated higher than 40 percent disabling. However, in determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran's impairment. Furthermore, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.71a with respect to determining the severity of his service-connected lumbar spine disability. 38 C.F.R. § 3.159(a)(1) and (2). In reviewing the record in its entirety, the Board does not find that the Veteran should be assigned an increased rating due to functional limitations. Still further, there is no evidence that any physician prescribed bed rest for the Veteran's lumbar spine disability during the relevant time period. As such, a disability rating greater than 40 percent under Diagnostic Code 5243 is not warranted. And as for any neurological manifestations, he has been granted separate ratings under DC 8720 for his radiculopathy of the right and left lower extremities. The Veteran has not disagreed with the disability evaluations that were assigned. As discussed above, the Board finds that the Veteran is not entitled to an evaluation in excess of 20 percent prior to March 28, 2013 and 40 percent thereafter for his lumbar spine disability. The Board has considered whether the benefit of the doubt rule applies the Veteran's appeal. 38 U.S.C.A. § 5107(b); Gilbert, supra. However, a preponderance of the evidence is against a higher evaluation; thus, this rule does not apply and the claim for an increased evaluation must be denied. The rating schedule represents as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. See 38 C.F.R. § 3.321(a), (b). To afford justice in exceptional situations, an extraschedular rating can be provided. See 38 C.F.R. § 3.321(b). The Court has clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a determination of whether the evidence presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, there must be a determination of whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto 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 to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating under 38 C.F.R. § 3.321(b)(1). The Board notes that the Veteran submitted a February 2011 letter from a VA physician that indicates the Veteran is considered a "catastrophically disabled" veteran. This is a designation for medical care purposes and takes into consideration all his disabilities. It does not entitle the Veteran to extra consideration for his low back disability. The Veteran's symptomatology and limitation in occupational functioning for the disability on appeal is reasonably contemplated by the rating schedule. The Veteran's symptoms of chronic pain and stiffness are adequately contemplated in the current ratings assigned for his lumbar spine. The schedular criteria specifically provides for rating spine disabilities on the basis of limitation of motion; or ankylosis; or incapacitating episodes. See 38 C.F.R. §§ 4.71a, DCs 5235-5243. Additional manifestations of the Veteran's service-connected lumbar spine disability, to include related radiculopathy have been contemplated by the separate ratings assigned for each lower extremity. Further, and as indicated in the Board's decision, although the schedular criteria provide for evaluations higher than the currently assigned ratings, his degenerative diseases of the lumbar spine have not manifested with the symptoms required to achieve such higher ratings. For these reasons, the Veteran's disability picture (e.g. his disability level and lumbar spine and neuropathy symptomatology) is adequately, and appropriately, contemplated by the applicable schedular rating criteria. ORDER Entitlement to an increased rating in excess of 20 percent for the lumbar spine disability, prior to March 28, 2013, is denied. Entitlement to an increased rating in excess of 40 percent for the lumbar spine disability, as of March 28, 2013, is denied. REMAND The Veteran reported in a statement received by the Board in May 2013 that he is unemployable due to his low back disability. The Board has jurisdiction to consider entitlement to a TDIU in an appealed claim for an increased rating when the issue is raised by assertion or reasonably indicated by the evidence, regardless of whether the RO expressly addressed the issue. See VAOPGCPREC 6-96 (Aug. 16, 1996). See also Caffrey v. Brown, 6 Vet. App. 377, 382 (1994); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). However, the question of TDIU entitlement may be considered a component of an appealed increased rating claim only if the TDIU claim is based solely upon the disability or disabilities that are the subject of the increased-rating claim, as in this case. VAOPGCPREC 6-96. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Send a VCAA notice letter to the Veteran and his representative regarding the claim for a TDIU. The letter should notify the Veteran of the information and evidence necessary to substantiate the claim for TDIU. The letter should also contain notice of the manner in which both disability ratings and effective dates are assigned for awards of disability benefits. 2. Obtain the Veteran's more recent treatment records (since 2012) from the VA facility in Columbia, South Carolina and associate the records with the claims folder. 3. Thereafter, schedule the Veteran for a VA orthopedic/neurological examination. The examiner should review the claims file. All necessary tests and studies, including appropriate range of motion and neurological assessments, should be conducted in order to identify the degree of impairment attributable to degenerative disc disease of the lumbar spine with radiculopathy to the lower extremities. The report of examination should contain a detailed account of all manifestations of the disability found to be present. The examiner should also take a detailed history regarding the Veteran's employment, education and vocational attainment in connection with the claim for TDIU. The examiner is requested to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected disabilities render him unable to secure or follow substantially gainful employment consistent with his education and occupational experience. Service connection is currently in effect for lumbar disc disease with radiculopathy of the lower extremities. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. 4. Finally, after undertaking any other development deemed appropriate, re-adjudicate the issue of entitlement to TDIU. If the benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. 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 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). ______________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs