Citation Nr: 1324850 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 10-29 369 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for degenerative disc disease, L4-S1, status post L4-5 foraminotomy and left L5-S1 hemilaminectomy and microdiskectomy (low back disability). 2. Entitlement to a total disability rating based on individual unemployability (TDIU). 3. Entitlement to an effective date earlier than February 7, 2011 for the grant of service connection for an acquired psychiatric disability. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active service from June 1969 to August 1972. This matter comes before the Board of Veterans' Appeals (Board) from November 2009 and December 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The claims for an increased evaluation for a low back disability and entitlement to a TDIU were previously before the Board in March 2013, at which time the Board remanded them for additional development. The requested development has been completed on the issue of entitlement to an increased evaluation for a back disability, and the claim is properly before the Board for appellate consideration. Additional development is needed on the issue of entitlement to a TDIU. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing in December 2012. A transcript is of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to a TDIU and to an effective date earlier than February 7, 2011, for the grant of service connection for an acquired psychiatric disability 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. Even considering the Veteran's pain and corresponding functional impairment, his degenerative disc disease, L4-S1, status post L4-5 foraminotomy and left L5-S1 hemilaminectomy and microdiskectomy (low back disability), is not characterized by limitation of forward flexion to 30 degrees or by favorable ankylosis of the entire thoracolumbar spine. 2. The left lower extremity peripheral neuropathy with radiculopathy is characterized by mild, incomplete paralysis. 3. Right lower extremity peripheral neuropathy with radiculopathy is not present. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for degenerative disc disease, L4-S1, status post L4-5 foraminotomy and left L5-S1 hemilaminectomy and microdiskectomy (low back disability) have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1-4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Here, the VCAA duty to notify was satisfied by way of a letters sent to the Veteran in November 2009 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. With respect to the Dingess requirements, in the November 2009 letter, the RO provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date. Next, VA has a duty to assist a Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains service treatment records, VA treatment records, and private treatment records. The Veteran had a VA examination in April 2013. Findings from the examination report are adequate for the purposes of deciding the claim on appeal. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran has been afforded a hearing before a VLJ in which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ noted that basis of the prior determinations and noted the elements of the claims that were lacking to substantiate the claim for an increased evaluation. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Moreover, the Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has identified any prejudice in the conduct of the Board. By contrast, the hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. II. Increased Ratings Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4 (2012). The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C.A. § 1155 (2002). The disability must be viewed in relation to its history. 38 C.F.R. § 4.1 (2012). A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7 (2012). Where the appeal arises from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Thus, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 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). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The General Rating Formula for Diseases and Injuries of the Spine provides a 20 percent disability rating for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Note (2) provides that, for VA compensation purposes, 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. The normal combined range of motion of the thoracolumbar spine is 240 degrees. See also Plate V, 38 C.F.R. § 4.71a. Diagnostic Code 5243 provides that intervertebral disc syndrome (IVDS) is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes provides a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings 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. Note (2) provides that, if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be rated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a. Diagnostic Code 8520 provides ratings for paralysis of the sciatic nerve. Diagnostic Code 8620 provides a rating for neuritis of the sciatic nerve, and Diagnostic Code 8720 provides a rating for neuralgia of the sciatic nerve. The rating criteria provide that mild incomplete paralysis is rated 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; moderately severe incomplete paralysis is rated 40 percent disabling; and severe incomplete paralysis, with marked muscular atrophy, is rated 60 percent disabling. Complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, is rated 80 percent disabling. The term "incomplete paralysis" with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a. The Veteran had a VA examination in February 2008. It was noted that he had not had any incapacitating episodes of back pain, although there was frequently back stiffness in the morning. Low back pain was precipitated by walking for more than 15 minutes, carrying groceries or anything weighing more than 20 pounds, repetitive bending, walking up and down stairs, and getting up and down from chairs. The Veteran rating his back pain as a five in severity, weekly flare-ups lasted for a day, and there was not any weakness of the legs or loss of sensation or numbness. On examination the spine was tender to palpation and slightly reduced lumbar lordosis. Range of motion of the thoracolumbar spine was flexion to 85 degrees with pain at 60 degrees, extension to 15 degrees with pain at 15 degrees, bilateral rotation to 45 degrees with pain at 45 degrees, and lateral rotation to 30 degrees with pain at 30 degrees. On repetitive testing flexion and extension were reduced by 5 degrees each. Straight leg raising was negative while standing and was positive at 50 degrees bilaterally when lying down. The examiner diagnosed the Veteran with degenerative disc disease from L4 to S1. Private treatment records indicate that the Veteran underwent a left L4-5 foraminotomy and left L5-S1 hemilaminotomy and microdiskectomy with foraminotomy on May 13, 2009. The Veteran had a VA examination in May 2010 at which he denied pain or numbness to the right leg. He had radiation of pain and numbness to the left lag. He also complained of constant pain to the low back, and he rated the pain as an eight in severity. The Veteran also had weakness, stiffness, instability, fatigue, and lack of endurance. Prolonged sitting, walking, bending, and getting in and out of bed aggravated the low back pain and left leg numbness. He reported using a cane to prevent any falls due to left leg numbness. The Veteran denied flare-ups due to leg pain or low back pain but reported experiencing moderate to severe back pain in a daily basis. He reported putting himself on complete bedrest due to severe back pain but had never had prescribed bedrest for low back pain. The Veteran denied any loss of bowel or bladder control. On examination, range of motion was forward flexion to 70 degrees, hyperextension to 20 degrees, bilateral lateral flexion to 30 degrees, and bilateral rotation to 30 degrees. Forward flexion was reduced by 10 percent due to pain after three repetitive movements. Straight leg raise was positive to the left at 40 degrees, and there was pain to the low back when the right leg was raised to 80 degrees. Deep tendon reflexes were normal to brisker than average bilaterally and there was full motor strength. There was slightly decreased sensory function to the left leg over the L4-L5 dermatomes. The diagnoses were peripheral neuropathy and radiculopathy from a sciatic nerve injury, left leg degenerative disc disease status post multiple lumbosacral spine surgeries, left leg numbness due to the low back disability, and no neuropathy to the right leg. The Veteran had another VA examination in April 2013 at which he reported flare-ups that impacted the function of the thoracolumbar spine. He felt that his back pain was incapacitating and severe at all times. There had not been periods of acute signs and symptoms that require bedrest prescribed by a physician or treatment by a physician. On examination, forward flexion was to 60 degrees, extension was to 20 degrees, bilateral lateral flexion was to 15 degrees, and bilateral lateral rotation was to 30 degrees. There was no additional limitation in motion or functional loss/impairment on repetitive testing. After repetitive use there was pain on movement. The examiner noted that the Veteran had a hyper verbal response on any manipulation of the spine and to any touching that was out of proportion to any positive findings. The Veteran had guarding or muscle spasm of the thoracolumbar spine that was severe enough to result in abnormal gait. Muscle strength testing was normal in the right lower extremity and active movement against in the left lower extremity. Reflexes were normal and a sensory examination for the lower extremities was normal on the right and showed decreased sensation on the left. There was no radiculopathy to the right lower extremity and mild radiculopathy to the left lower extremity. The Veteran did not have intervertebral disc syndrome or incapacitating episodes. He used a cane that he said was for his back. The examiner felt that the Veteran's thoracolumbar spine condition affected his ability to work but that it was more likely than not that he could perform light physical work. The rationale was that some of the Veteran's outbursts on having his spine barely touched did not correlate objectively with the examination and that the sensitivity seemed to move around in a non-anatomical fashion. The Veteran currently has a 20 percent evaluation for his low back disability. The preponderance of the evidence is against entitlement to a 40 percent evaluation, the next highest available under the General Rating Formula for Diseases and Injuries of the Spine, because the record does not show that forward flexion was limited to 30 degree or less or that there was favorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § 4.71a. At the VA examinations discussed above there was forward flexion to at least 60 degrees. Furthermore, the record does not show favorable ankylosis of the entire thoracolumbar spine. Under 38 C.F.R. §§ 4.40 and 4.45, and the decision in DeLuca, the Board is required to consider the Veteran's pain, swelling, weakness, and excess fatigability when determining the appropriate disability evaluation for a disability using the limitation-of-motion diagnostic codes. The Board recognizes the functional limitations that the Veteran has as a result of his service-connected low back disability, but the current disability evaluation contemplates these limitations. In this regard, at the April 2013 examination, while there was pain on movement, there was no additional limitation in motion or functional loss/impairment on repetitive testing. Furthermore, the examiner noted that Veteran's reactions did not correlate objectively with the examination and that the sensitivity seemed to move around in a non-anatomical fashion. Thus, the 20 percent evaluation presently assigned adequately contemplates the objective findings and subjective complaints, and an evaluation in excess of 20 percent is not warranted at any time during the course of the appeal. The Board also finds that an evaluation in excess of 20 percent based on IVDS is not warranted. In this regard, the record does not show that he has had incapacitating episodes that included bedrest prescribed by a physician and treatment by a physician. The April 2013 examiner did not feel that the Veteran had IVDS and there had not been periods of bedrest prescribed by a physician. At the May 2010 VA examination the Veteran reported putting himself on complete bedrest due to severe back pain. However, he had never had prescribed bedrest for low back pain. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. In regards to radiculopathy to the left lower extremity, the preponderance of the evidence is against a showing moderate incomplete paralysis of the sciatic nerve, as is required for a 20 percent evaluation. See 38 C.F.R. § 4.124a, Diagnostic Code 8620. The May 2010 examination indicated numbness to the left lower extremity, and at the April 2013 VA examination there was decreased sensation to the left lower extremity and mild radiculopathy to the left lower extremity. The record does not show mild incomplete paralysis to the right lower extremity, and therefore the Veteran does not qualify for a 10 percent evaluation for right lower extremity radiculopathy. In light of the holding in Hart, the Board has considered whether the Veteran is entitled to "staged" ratings for his service-connected low back disability and left lower extremity peripheral neuropathy, as the Court indicated can be done in this type of case. Based upon the record, we find that at no time during the claims period have the disabilities on appeal been more disabling than as currently rated under the present decision of the Board. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's low back disability and left lower extremity peripheral neuropathy symptomatology, in that these disabilities are manifested by no more than pain, numbness, and limitation of motion. As noted above, such manifestations are contemplated in the rating criteria. No exceptional or unusual disability picture is demonstrated by the disabilities. The rating criteria are therefore adequate to evaluate these service-connected disabilities and referral for consideration of extraschedular rating is not warranted. The preponderance of the evidence is against the claim. There is no doubt to be resolved, and an increased evaluation is not warranted. See 38 C.F.R. § 5107(b); Gilbert, 1 Vet. App. at 54-56. ORDER An increased evaluation for degenerative disc disease, L4-S1, status post L4-5 foraminotomy and left L5-S1 hemilaminectomy and microdiskectomy (low back disability), is denied. REMAND In June 2013 the Veteran appealed the assignment of the effective date of February 7, 2011 for the grant of service connection for an acquired psychiatric disability. To date, the RO has not issued the Veteran a Statement of the Case (SOC) with respect to the claim of entitlement to an effective date earlier than February 7, 2011 for the grant of service connection for an acquired psychiatric disability. Under the circumstances, the Board has no discretion and is obliged to remand the issue to the RO for the issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The Veteran seeks entitlement to a TDIU. The Veteran's service-connected disabilities besides an acquired psychiatric disability are status post medial meniscectomy with degenerative arthritis, patellofemoral pain syndrome with chondromalacia, left knee, evaluated as 20 percent disabling, low back disability, evaluated as 20 percent disabling, left knee scar, evaluated as 10 percent disabling, rotary lateral patellar subluxation, left knee, evaluated as 10 percent disabling, and left lower extremity peripheral neuropathy, evaluated as 10 percent disabling. He was granted service connection for an acquired psychiatric disability as of February 7, 2011, with an evaluation of 100 percent. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 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 age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The Board thus must therefore determine whether entitlement to TDIU is warranted in this case, on the basis of the Veteran's service-connected disabilities other than an acquired psychiatric disability. In doing so, the Board finds that a vocational opinion that considers the level of impairment caused by the Veteran's service-connected conditions, other than an acquired psychiatric disability, either alone and in the aggregate, is necessary to adjudicate this claim. Therefore, the claim is being remanded for that purpose. In addition, the Board notes that the United States Court of Appeals for Veterans Claims (Court) has recently noted that VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement special monthly compensation (SMC) under 38 U.S.C.A § 1114. See Bradley, 22 Vet. App. 280, 294 (2008) (finding that SMC "benefits are to be accorded when a Veteran becomes eligible without need for a separate claim"). Indeed, as noted in Bradley, VA must consider a TDIU claim despite the existence of a schedular total rating and award SMC under 38 U.S.C.A. § 1114(s) if VA finds the separate disability supports a TDIU rating independent of the other 100 percent disability rating. See Bradley, 22 Vet. App. 280, 294 (2008); see also DVA Sum. Op. Gen. Counsel Prec., 75 Fed. Reg. 11229-04 (March 10, 2010) (withdrawing VAOPGCPREC 6-99, 64 Fed. Reg. 52375 (1999) (the logic of Bradley suggests that if a Veteran has a schedular total rating for a particular service-connected disability and subsequently claims TDIU for a separate disability, VA must consider the TDIU claim despite the existence of the schedular total rating and award SMC under section 1114(s) if VA finds the separate disability(ies) support a TDIU rating independent of the other 100 percent disability rating). SMC is payable at the housebound rate where the Veteran has a single service-connected disability rated as 100 percent and, in addition: (1) has a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability, and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350. Subsection 1114(s) requires that a disabled Veteran whose disability level is determined by the ratings schedule must have at least one disability that is rated at 100 percent in order to qualify for the special monthly compensation provided by that statute. The Court declared, however, if a Veteran were awarded a TDIU based on multiple underlying disabilities and then later receives a schedular disability rating for a single, separate disability that would, by itself, create the basis for an award of a TDIU, that the order of the awards was not relevant to the inquiry as to whether any of the disabilities alone would render the Veteran unemployable and thus entitled to a TDIU rating based on that condition alone. Buie v. Shinseki, 24 Vet. App. 242, 250 (2010). In light of Buie and Bradley, and VA's obligation to maximize the Veteran's benefits, VA must determine whether the Veteran meets the criteria for a TDIU based on the aggregate impact of his service-connected disabilities other than his PTSD. Moreover, the assignment of an earlier effective date for the award of service connection for an acquired psychiatric disability could affect entitlement to SMC. As such, these issues are inextricably intertwined, and adjudication of the SMC claim also must be deferred pending adjudication of the earlier effective date claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). A private treating physician wrote in a February 2010 statement that the Veteran had been treated in the spine center/neurosurgery and may not be able to return to work due to severe low back pain, left leg numbness, compensatory overuse and pain in the right leg and foot, and an inability to sit for any period of time. Treating providers from a private spine center/neurosurgery wrote in a May 2010 statement that the Veteran had undergone three prior neurosurgical procedures with declining benefit. A recent EMG study had shown continuing S1 radiculopathy and polyneuropathy that was producing severe pain. It was unlikely that the Veteran would be able to reenter the workforce because pain limited activity and was chronic in nature. In a June 2010 statement they wrote that the Veteran was convalescing from his August 2009 surgery and would not be returning to the workforce due to his permanent disability. The April 2013 VA examiner felt that the Veteran could return to some of his previous jobs as a taxi driver. 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) (2012). Expedited handling is requested.) 1. The RO should notify the Veteran that he may submit lay statements from individuals who have first-hand knowledge of his low back disability, left knee disabilities, and left lower extremity radiculopathy on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. Invite the Veteran to submit medical and hospitalization records, medical statements, and any other lay or medical evidence showing evidence of his unemployability due to his service-connected low back disability, left knee disabilities, and left lower extremity radiculopathy. He should be provided an appropriate amount of time to submit this evidence. 3. After the above development has been completed, obtain an opinion from a vocational specialist as to whether, without regard to the Veteran's age, impact of any nonservice-connected disabilities, or his acquired psychiatric disability, his meniscectomy with degenerative arthritis, patellofemoral pain syndrome with chondromalacia, left knee; low back disability; left knee scar; rotary lateral patellar subluxation, left knee; and left lower extremity peripheral neuropathy make him unable to secure or follow a substantially gainful occupation. The claims folder should be made available to and reviewed by the examiner. All findings and conclusions should be set forth in a legible report. 4. Issue the Veteran an SOC with respect to the claim for an effective date earlier than February 7, 2011 for the award of service connection for an acquired psychiatric disability, to include notification of the need to timely file a Substantive Appeal to perfect his appeal on this issue. 5. Then, after conducting the above development, readjudicate the claim for a TDIU due to service-connected disabilities other than an acquired psychiatric disability. In readjudicating this claim, in light of the Court's decisions in Buie v. Shinseki, 24 Vet. App. 242, 251 (2011) and Bradley v. Peake, 22 Vet. App. 280, 293 (2008) that require VA to maximize a Veteran's benefits, and in light of the Board's award of a 100 percent total rating for service-connected acquired psychiatric disability, the RO must also adjudicate the issue of entitlement to SMC at the housebound rate pursuant to 38 U.S.C.A. § 1114(s) (West 2002). If any benefit sought on appeal remains denied, furnish the Veteran and a supplemental statement of the case and give him the appropriate opportunity for response. The appellant 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs