Citation Nr: 1331969	
Decision Date: 10/03/13    Archive Date: 10/07/13

DOCKET NO.  10-13 224	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1.  Entitlement to an initial increased rating for a lumbar spine disability, currently rated 20 percent.

2.  Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU).


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

S. Becker, Associate Counsel



INTRODUCTION

The Veteran served on active duty from March 1968 to September 1969.

This matter comes before the Board of Veterans' Appeals (Board) from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, that granted service connection and assigned an initial 20 percent rating for a lumbar spine disability.  The Veteran requested a hearing.  It was scheduled for June 2010, but it was not held because he agreed to forego it in favor of a VA medical examination.  The Board remanded this matter for additional development in October 2012.  

Since the development has been substantially completed, adjudication may proceed.  Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998).  New pertinent evidence was submitted after the most recent supplemental statement of the case, but a the representative waived the right to review by the RO in a February 2013 statement.  38 C.F.R. § 20.1304(c) (2012).  The following determination is based on review of the paper claims file and Virtual VA electronic claims file.

A TDIU, if expressly raised by the Veteran or reasonably raised by the record, is part of an increased rating claim.  Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).  Entitlement to a TDIU is before the Board because both he and the record have reasonably raised it.  The claim for TDIU is REMANDED to the RO via the Appeals Management Center in Washington, D.C.

A claim of entitlement to service connection for a left arm disability, to include the shoulder, was raised by the Veteran in a March 2013 statement.  That claim has not been adjudicated yet by the AOJ.  That claim is referred to the AOJ for appropriate action.



FINDING OF FACT

The Veteran's lumbar spine disability has not manifested thoracolumbar spine forward flexion of 30 degrees or less, ankylosis, or incapacitating episodes lasting at least four weeks per year.


CONCLUSION OF LAW

The criteria for an initial rating in excess of 20 percent for a lumbar spine disability have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.31, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5003, 5242, 5243 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

Before addressing the merits, the Board notes that VA has a duty of notification regarding a claim for VA benefits.  38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159 (2012).  VA must notify the claimant and his representative prior to initial adjudication by the AOJ of any information and evidence not of record that is necessary to substantiate the claim, that VA will seek to obtain, and that the claimant is expected to provide.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Notification that an initial rating and an effective date will be assigned if service connection is granted for a disability should be included.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

Neither the Veteran nor his representative has alleged prejudice with respect to notice.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  None is found.  An August 2008 letter informed the Veteran and his representative of the criteria for establishing service connection, the evidence required, his and VA's respective duties for obtaining evidence, and how ratings and effective dates are assigned.  That letter was sent prior to the initial adjudication by the RO in an October 2008 rating decision.  The purpose that notice was intended to serve was fulfilled in that the benefit sought by him, which initially was service connection, was granted in the August 2009 rating decision.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Finally, any defect with respect to notice content or timing is harmless because he has had a meaningful opportunity to participate in the processing of this matter.  The essential fairness of adjudication has not been impacted.

In addition to the duty to notify, VA has a duty to assist with respect to a claim for VA benefits.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012).  That includes a requirement to aid the claimant in the procurement of relevant records.  38 U.S.C.A. § 5103A(b-c) (West 2002); 38 C.F.R. § 3.159(c)(1-3) (2012).  VA also must provide a medical examination or obtain a medical opinion when necessary.  38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012).

Service medical records and Social Security Administration (SSA) records regarding the Veteran have been obtained by VA.  The Veteran has had several opportunities to identify any facilities, both VA and private, where he receives treatment for his lumbar spine disability.  That includes in response to the Board's remand.  However, no VA or private treatment records have been obtained by VA since the Veteran did not indicate there are any and there is no indication otherwise that any exist, beyond those of record.  The Veteran submitted private treatment records on his own behalf and stated his satisfaction that they are complete.  Three VA medical examinations were conducted, the last as directed by the Board's remand.  To the extent the paper claims file or Virtual VA electronic claims file was not reviewed at one or more of these examinations, it is not prejudicial as the Veteran gave a reasonably accurate account of his medical history at each.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); D'Aries v. Peake, 22 Vet. App. 97 (2008).  He also was interviewed and physically assessed at each.  Those actions provide sufficient detail so that the determination can be fully informed.  Therefore, the examinations are adequate.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  

It is significant that neither the Veteran nor his representative has identified any further development necessary for adjudication that has not been completed.  The record also does not indicate any further necessary development.  Accordingly, the Board finds that no further notice or assistance is required and that VA's duties to notify and to assist have been satisfied.  Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).  Therefore, adjudication may proceed.  Bernard v. Brown, 4 Vet. App. 384 (1993).

Increased Rating

Disability ratings represent as far as practicably can be determined the average impairment in earning capacity due to a disability.  38 U.S.C.A. § 1155 (West 2002).  A rating is assigned under the Rating Schedule by comparing the extent to which a claimant's disability impairs his ability to function under the ordinary conditions of daily life, as demonstrated by his symptoms, with the rating criteria for the disability.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.10 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Examinations must be interpreted, and if necessary reconciled, into a consistent picture so that the rating is accurate.  38 C.F.R. § 4.2 (2012).  If two ratings are potentially applicable, the higher is assigned if the disability more nearly approximates the criteria required for the higher rating.  Otherwise, the lower rating is assigned.  38 C.F.R. § 4.7 (2012).  Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant.  38 C.F.R. § 4.3 (2012).  The claimant thus prevails if the evidence supports an increased rating or is in relative equipoise, but does not prevail when the preponderance of the evidence is against an increased rating.  38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The assignment of a staged rating, where two or more ratings are assigned for different portions of the period on appeal, must be considered.  Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999).

A musculoskeletal disability involves the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  38 C.F.R. § 4.40 (2012).  Functional loss in the form of limitation of motion may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion, or weakness.  38 C.F.R. §§ 4.40, 4.59 (2012).  It also may be due to excess fatigability or incoordination.  38 C.F.R. § 4.45 (2012).  An increased rating for functional loss, to include during flare ups, due to those factors accordingly may be assigned under Diagnostic Codes predicated on limitation of motion.  38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995).

The Veteran's lumbar spine disability has been described as postoperative discectomy and nerve decompression residuals including degenerative joint and disc disease.  Degenerative arthritis and similar conditions of any body part must be established by X-ray evidence.  38 C.F.R. § 4.71a, Diagnostic Codes 5003-5010, 5013-5016, 5018-5024 (2012).  Rating is to be made on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved.  38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012).  If that results in a noncompensable rating, a 10 percent rating is assigned for each major joint or group of minor joints affected by limitation of motion.  38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012).  The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012).  In the absence of any limitation of motion, involvement of two or more major joints or two or more minor joint groups warrants a 10 percent rating.  38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012).  In the absence of any limitation of motion, involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations warrants a 20 percent rating.  38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012).  A rating based on arthritis cannot be combined with a rating based on limitation of motion of the same joint.  38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012).  

Like other back conditions, a rating for degenerative arthritis of the spine is to be made with or without symptoms such as pain, whether or not it radiates, stiffness, or aching under the General Rating Formula for Diseases and Injuries of the Spine.  38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242 (2012).  A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, 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.  38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242 (2012).  A 40 percent rating is assigned for forward flexion of the thoracolumbar spine limited to 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine.  38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242 (2012).  A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine.  38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242 (2012).  A 100 percent rating is assigned for unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242 (2012).

Normal forward flexion of the thoracolumbar spine is from 0 to 90 degrees.  38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242, Note (2), Plate V (2012).  Normal combined range of motion of the thoracolumbar spine is 240 degrees, or 90 degrees forward flexion, with 30 degrees extension, 30 degrees left and right lateral flexion, and 30 degrees left and right lateral rotation.  38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242, Note (2), Plate V (2012).  Separate ratings are to be assigned under appropriate Diagnostic Codes for bowel impairment, bladder impairment, or any other objective neurologic abnormality associated with the spinal disability. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242, Note (1) (2012).

Intervertebral disc syndrome (IVDS) is rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating IVDS Based on Incapacitating Episodes, whichever results in the higher rating.  38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012).  A 20 percent rating is assigned for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months.  38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012).  Incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months results in award of a 40 percent rating.  38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012).  The maximum rating of 60 percent requires incapacitating episodes having a total duration of at least six weeks during the past 12 months.  38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012).  An incapacitating episode remained defined as a period of acute signs and symptoms requiring physician treatment and bed rest prescribed by a physician.  38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1) (2012).

The probative value of all evidence must be assessed.  38 C.F.R. § 4.6 (2012).  The Board must account for evidence it finds to be persuasive or unpersuasive and provide reasons for rejecting any evidence favorable to the Veteran.  Gabrielson v. Brown, 7 Vet. App. 36 (1994), Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  That includes any lay evidence in addition to the medical evidence.  Only the most relevant evidence need be discussed, even though all the evidence has been reviewed.  Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000).  That includes evidence dated prior to the date of receipt of the claim, such as the SSA records here, if it sheds light on the disability during the period of review.  38 C.F.R. § 4.1 (2012).

After review of the evidence, the Board finds that an increased rating for the Veteran's lumbar spine disability is not warranted.  No ratings higher than the currently assigned 20 percent rating are permitted for degenerative arthritis and similar conditions of any body part.  38 C.F.R. § 4.71a, Diagnostic Codes 5003-5010, 5013-5016, 5018-5024 (2012).  The criteria for the next highest rating of 40 percent for degenerative arthritis of the spine and other back conditions have not been met.  There is no indication that the Veteran's entire thoracolumbar spine is favorably ankylosed or that his forward flexion is to 30 degrees or less.  There is also no indication that his entire thoracolumbar spine is unfavorably ankylosed or that his entire spine, both thoracolumbar and cervical, is unfavorably ankylosed.

It was determined upon VA medical examination in July 2009 that the Veteran did not have any thoracolumbar spine ankylosis, whether favorable or unfavorable.  No mention of any thoracolumbar spine ankylosis was made upon VA medical examination in July 2010 or December 2012.  Private treatment records are silent with respect to thoracolumbar spine ankylosis.  The Veteran rather has been able to move his thoracolumbar spine in every direction at each of the VA examinations.  Therefore, there is no ankylosis shown.

The Veteran's forward flexion was to 75 degrees at the July 2009 VA medical examination.  Upon repetition, pain limited his forward flexion to 65 degrees.  It was to 45 degrees with pain at the end of the range at the July 2010 VA examination.  Repetition did not result in additional limitation of motion due to pain, fatigue, weakness, or lack of endurance.  The Veteran's forward flexion at the December 2012 VA examination also was to 45 degrees, with pain at the end of the range.  Though he had weakened movement and incoordination in addition to pain, none of those factors resulted in additional limitation of motion with repetition.  Therefore, his forward flexion consistently has been well above 30 degrees.  The pain and other factors of functional limitation experienced by the Veteran with forward flexion doe not limit his forward flexion to 30 degrees or less.  Painful motion does not constitute limited motion.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

Forward flexion essentially is bending at the waist.  Private treatment records state that the Veteran is unable to bend.  However, these records do not show that his forward flexion was measured.  They show that he was advised to avoid bending.  An inability to forward flex therefore cannot be assumed.  Further, that is inconsistent with the VA medical examinations which provide objective measurement of forward flexion.  It also is inconsistent with the Veteran's statements.  He never mentions a complete inability to bend.  He claims bending limitations.  In a March 2013 statement, he indicated that he can only bend one time.  The Veteran is a lay person because there is no indication that he has a medical background.  His competent to report his bending frequency because it is within his personal experience.  Layno v. Brown, 6 Vet. App. 465 (1994).  Competent lay evidence may be discounted due to interest, self-interest, bias, inconsistency, inconsistency with other evidence, facial implausibility, bad character, malingering, desire for monetary gain, or witness demeanor.  Pond v. West, 12 Vet. App. 341 (1999); Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Caluza v. Brown, 7 Vet. App. 498 (1995); Cartright v. Derwinski, 2 Vet. App. 24 (1991).  Here, the Veteran consistently was able to forward flex his thoracolumbar spine more than once as recorded at the VA medical examinations, and those examination provided measurements of the flexion possible.  The Board finds that objective measurements of the VA examinations to be more persuasive than the Veteran's claims and the unmeasured statement that bending was discouraged by the private medical records.

With respect to a separate rating for a neurologic abnormality associated with the Veteran's lumbar spine disability, no consideration of his lower extremities is necessary.  A December 2010 rating decision indeed granted service connection and assigned initial ratings for radiculopathy of each lower extremity.  The Veteran always has denied bowel and bladder impairment, to include in the SSA records and at the VA medical examinations.  He is competent to make those denials.  His denials are credible because there is no significant reason to doubt them.  Indeed, no findings of bowel or bladder impairment have been made at any of the VA examinations or in the SSA or private treatment records.  The SSA records show the Veteran's complaint of a lack of sexual desire and erectile dysfunction.  Erectile dysfunction was found in that it was diagnosed.  However, it was not attributed to the Veteran's lumbar spine disability.  I was attributed to him taking a specific medication.  No indication exists of any other neurologic abnormality.

Regarding IVDS, there is no indication of incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months.  Nothing of the sort has been reported by the Veteran.  Episodes totaling only two weeks in December 2008 were reported, competently and credibly, by the Veteran the July 2009 VA medical examination.  It was noted that bed rest was prescribed.  Episodes were denied, competently and credibly, by the Veteran at the July 2010 VA examination and August 2010 VA medical examination.  None were referenced at the December 2012 VA examination.  The private treatment records show that the Veteran was scheduled to be seen by the physician rather than seen by the physician on an emergency basis.  They do not show that bed rest ever was prescribed.  In sum, the highest rating possible would be 20 percent for the 12 month period including December 2008 but 0 percent for every 12 month period thereafter because no incapacitating episodes are shown except in December 2008.  38 C.F.R. § 4.31 (2012).  Therefore, a higher rating is not warranted.

The Board has considered the application of reasonable doubt and the assignment of a staged rating in making each of the above conclusions leading to the determination that an increased rating for the Veteran's lumbar spine disability is not warranted.  However, the preponderance of the evidence is against the assignment of a rating higher than 20 percent for any portion of the period on appeal.  There is no reasonable doubt to resolve in the Veteran's favor and that a staged rating is not warranted.  The Veteran recounted in a February 2010 statement recently being told during private treatment that things were the same with his back.  It was opined at the December 2012 VA medical examination that the Veteran's lumbar spine disability had progressed slightly since 2008.  Yet that progression was attributed solely to his associated lower extremity neurologic abnormalities, which have been separately service-connected.

As an alternative to assigning a schedular rating, or a rating under the Rating Schedule, one may be assigned on an extraschedular basis.  38 C.F.R. § 3.321(b) (2012); Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995).  A three step process governs the assignment of extraschedular ratings.  First, a determination of whether the evidence presents such an exceptional disability picture that the schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology must be made.  38 C.F.R. § 3.321(b)(1) (2012); Thun v. Peake, 22 Vet. App. 111 (2008).  If the rating criteria are inadequate, it must be determined whether the Veteran exhibits other related factors such as marked interference with employment or frequent periods of hospitalization.  38 C.F.R. § 3.321(b)(1) (2012); Thun v. Peake, 22 Vet. App. 111 (2008).  If the related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for consideration of an extraschedular rating.  38 C.F.R. § 3.321(b)(1) (2012); Thun v. Peake, 22 Vet. App. 111 (2008).

Neither the Veteran nor his representative has argued for an extraschedular rating.  There is no indication that his lumbar spine disability cannot be contemplated adequately by the schedular rating criteria discussed above.  The Veteran's symptoms, which the VA medical examinations and private treatment records document primarily consist of pain, stiffness, and limited motion, are specifically accounted for by the rating criteria.  Higher ratings are possible pursuant to the rating criteria, but the Veteran does not meet the criteria for a higher rating.  The effect his lumbar spine disability has on him thus is encompassed by the assigned rating.  That includes resulting limitations in his ability to sit, stand, walk, bend, squat, lift, twist, drive, shop, exercise, do chores such as mow grass and shovel snow, travel, and engage in other daily activities including recreation.  It also includes that he has been prescribed medication, had undergone epidural injections and physical therapy, and began using a cane.

Because the schedular rating criteria are adequate, the Board does not find an exceptional lumbar spine disability picture.  Discussion of whether there are related factors such as marked interference with employment or frequent periods of hospitalization accordingly is unnecessary.  However, there is no indication the Veteran has been hospitalized overnight due to his lumbar spine disability since his claim was submitted.  His surgeries may have involved an overnight stay at the hospital, but they occurred years prior to the date of receipt of his claim.  The evidence also does not show marked interference with employment beyond that contemplated by the assigned rating  In sum, the Board finds that referral for consideration of the assignment of an extraschedular rating is not warranted.


ORDER

An initial rating in excess of 20 percent for a lumbar spine disability is denied.


REMAND

The claim of entitlement to a TDIU must be remanded.  Although the Board sincerely regrets the delay that will cause, adjudication cannot proceed without further development.  The development is required to satisfy VA's aforementioned duties to notify and to assist the Veteran in substantiating the claim.  38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012).  

Total disability means that there is present any impairment of mind or body that renders it impossible to follow a substantially gainful occupation.  38 C.F.R. §§ 3.340, 4.15 (2012).  The impairment must be due to a service-connected disability or service-connected disabilities.  38 C.F.R. § 4.16 (2012).  Here, a TDIU has been reasonably raised as part of the Veteran's increased rating claim.  He has stated that he cannot work due to his lumbar spine disability and associated lower extremity radiculopathy disabilities.  He indicates having difficulty with sitting, standing, walking, bending, squatting, lifting, and driving.  The Veteran reported at the July 2009 VA medical examination that he retired in June 2004 after working approximately 30 years as a machine operator/job setter due to his disabilities.  At the July 2010 VA examination, he reported that he occasionally missed work due to the back disability.  It was opined that he would not be able to perform job duties such as lifting and constant standing at the December 2012 VA examination.  SSA records show that the Veteran has a high school education.  SSA records additionally show that, in March 2005, the Veteran was deemed disabled due to his lumbar spine disability and his psychiatric state.  It specifically was determined that he could occasionally lift 20 pounds, could frequently lift only 10 pounds, was unlimited regarding pushing or pulling, and could stand or walk and sit with normal breaks for six hours per regular eight hour workday.  The onset of his inability to work was set as March 2004.  Finally, private treatment records show that the Veteran cannot sit or stand for any prolonged period, lift, squat, twist, or bend.  The Veteran can bend but has been advised not to do so.

No notice with respect to a TDIU claim has not been sent to the Veteran and his representative.  A letter informing them of the criteria for establishing a TDIU, the evidence required in that regard, the Veteran's and VA's respective duties for obtaining evidence, and how ratings and effective dates are assigned must be issued.  No VA medical examination or opinion specific to a TDIU has been provided.  Each of the VA medical examinations has touched upon his employability.  Yet none has included an opinion on whether or not his service-connected disabilities collectively are so severe as to him unable to secure or follow a substantially gainful occupation.  An opinion is necessary to adjudicate his entitlement to a TDIU in light of the conflicting indications, particularly between the SSA records and private treatment records, regarding his limitations for certain activities inherent to working such as sitting, standing, and lifting.

Accordingly, the case is REMANDED for the following actions:

1.  Provide the Veteran with a notice letter regarding a TDIU.  Inform him of the criteria for establishing a TDIU, the evidence required, and the Veteran's and VA's respective duties for obtaining evidence.

2.  Then, schedule the Veteran for an appropriate VA examination.  The examiner must review the claims file and should note that review in the report.  The examiner also should include in the report details of an interview of the Veteran and results of all tests deemed necessary.  The examiner should opine as to whether it is at least as likely not (50 percent or greater or probability) that the Veteran is unable to secure or follow a substantially gainful occupation by reason of his service-connected lumbar spine disability, right lower extremity radiculopathy, and left lower extremity radiculopathy.  Consideration should be given to his education and work history in forming this opinion, but not his age and nonservice-connected disabilities.  A clear and complete explanation should be provided for the opinion.  If the Veteran is found capable of work, the examiner should state what type of work, and what accommodations and limitations would be needed due to the service-connected disabilities..

3.  Then readjudicate the claim.  If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response.  Then, return the claim to the Board.

The Veteran is advised that failure to report for any scheduled examination without good cause may result in an adverse decision.  38 C.F.R. § 3.655 (2012); Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood v. Derwinski, 1 Vet. App. 190 (1991).

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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
HARVEY P. ROBERTS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs