Citation Nr: 1334104 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 08-02 305 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to an increased rating for arthritis of the bilateral sacroiliac joint, fusion, with degenerative changes of L5-S1, currently rated as 20 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from November 1963 to November 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In a November 2011 decision, the Board remanded this issue for additional development. In an October 2012 rating decision, the RO granted service connection for right lower extremity radiculopathy at a 10 percent disability evaluation, effective December 1, 2011. The Veteran has not expressed disagreement with this decision and it is accordingly not before the Board. The Board also notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the U.S. Court of Appeals for Veterans Claims ("Court") held that a total disability evaluation based on individual unemployability (TDIU) claim is part of an increased rating claim when such claim is raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, the Veteran's representative in an October 2013 Written Brief Presentation claimed that the Veteran's service-connected disabilities rendered the Veteran unemployable. As a result, the Board finds that a TDIU claim has been raised by the record. The Board notes again that in an October 2011 Informal Hearing Presentation, the Veteran's representative specifically requested that a claim of entitlement to service connection for hypertension, to include as due to herbicide exposure be referred for development. However, the initial adjudication of this claim has still yet to take place. Accordingly, the issue of entitlement to service connection for hypertension, to include as due to herbicide exposure has been raised by the record, but has not been adjudicated by the agency of original jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over this claim, and it is again referred to the AOJ for appropriate action. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's bilateral sacroiliac joint, fusion, with degenerative changes of L5-S1is not manifested by forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine, and the evidence does not show that the Veteran had any type of incapacitating episodes of intervertebral disc syndrome having a total duration of at least four, but less than six, weeks during a previous 12 month period. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for arthritis of the bilateral sacroiliac joint, fusion, with degenerative changes of L5-S1, are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5242 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). In this appeal, the RO provided notice to the Veteran in an August 2007 letter, prior to the date of the issuance of the appealed November 2007 rating decision. The August 2007 letter explained what information and evidence was needed to substantiate a claim for an increased rating, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has also fulfilled its duty to assist in obtaining the identified and available evidence needed to substantiate the claim adjudicated in this decision. The RO has either obtained, or made sufficient efforts to obtain, records corresponding to all treatment for the claimed disorder described by the Veteran. Additionally, he was afforded VA examinations in September 2007, December 2011 and November 2012. The Board finds these examination reports to be thorough and consistent with contemporaneous medical records. The examinations in this case are adequate upon which to base a decision with regards to this claim. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (defining adequacy with respect to medical examinations and opinions as those providing sufficient detail so that the Board can perform a fully informed evaluation of the claim). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Increased Ratings Laws and Regulations The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2012). But where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of back pain and hip pain. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities. His statements have been consistent with the medical evidence of record, and are probative for resolving the matters on appeal. The Board will consider not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. The Veteran submitted a claim for an increased rating in July 2007. The Veteran is currently rated at 20 percent under Diagnostic Code 5010-5242 for his thoracolumbar spine disorder. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45 (2012), pertaining to functional impairment. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2012). Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a 10 percent evaluation is assignable each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003. 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. Regulatory changes amended the VA Schedule for Rating Disabilities, 38 C.F.R. Part 4 (2002), including the rating criteria for evaluating disabilities of the thoracic, lumbar, and cervical spine. Effective from September 26, 2003, 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). Under the current General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is for application with forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, combined range of motion of the cervical spine not greater than 170 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent evaluation is assigned for forward flexion of the cervical spine at 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent evaluation is warranted for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (2012). For VA compensation purposes, normal forward flexion of the lumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, Note (2) (2012). The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. Id. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Id. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. Spine conditions rated under Diagnostic Code 5243, for intervertebral disc syndrome, may be rated alternatively based on incapacitating episodes. The criteria provide for a 10 percent rating where intervertebral disc syndrome is manifested with 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 was warranted where incapacitating episodes have a total duration of at least two weeks but less than 4 weeks during the past 12 months. A 40 percent rating requires evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating requires evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. "Incapacitating episodes" was defined in Note (1) as 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) also allowed the Veteran to be rated separately for musculoskeletal and neurological manifestations under appropriate Diagnostic Codes if it would result in a higher combined evaluation for the disability. The Veteran underwent a VA examination in September 2007. He presented with complaints of low back pain and numbness into his leg when he stood a long time. He could walk approximately half a block and was unable to run. He was able to bend at the waist but would have pain if it prolonged. If he did any activity that was strenuous, he would have a flare-up and his back would ache for 4 days. Flare-ups occurred once per month or more often with any increased activity. There were no incapacitating episodes or associated constitutional symptoms. He did have bowel and bladder control. He was retired. On examination, he had a normal gait and used no assistive devices. He had slight tenderness to paraspinal musculature of the lower back. He flattened lordosis. Flexion was from 0 to 45 degrees of a normal 90 degrees with pain through motion. Extension was more painful at 0 to 15 degrees. Side bending left and right was from 0 to 15 degrees with minor pain. Rotation left and right was virtually 0 degrees of the lower spine with minimal pain, namely because he was unable to move his lower spine. There were no sensory deficits on examination and he had equal muscle strength and tone of the lower extremities. He did have slight pain on his lower back with straight leg raising bilaterally. After repetitive motion activity of the spine, testing for pain, weakness and fatigability showed no change in the range of motion or pattern that has been described prior to activity. X-rays of the lumbar spine demonstrated fused sacroiliac joints of underdetermined cause, slight generalized osteophytes and early degenerative changes L5-S1 disks and facets. The fusion of the sacroiliac joints would be from the arthritis over the many years. The diagnosis was arthritis of bilateral sacroiliac joints that had now caused a fusion and degenerative changes of L5-S1 disks and facets. Per the November 2011 remand instructions, the Veteran underwent a VA examination in December 2011. The examiner noted that in 1988 the Veteran had back surgery subsequent an incident where he was unable to get out of bed one morning. He underwent a fusion operation to treat a herniated disc. He received some relief from this surgery and was currently treating his back condition with non-aspirin analgesics. In April 2009, he incurred a myocardial infarction and a few days afterwards a cerebrovascular accident (CVA). His left side remained paralyzed status-post CVA and he used a wheelchair for ambulation. He reported that cold weather produced flare-ups where it was difficult to stand or walk at all for a day. On examination, forward flexion was from 0 to 40 degrees with painful motion beginning at 40 degrees. Extension was 0 degrees. Right lateral flexion was from 0 to 20 degrees with painful motion beginning at 20 degrees. Left lateral flexion was from 15 degrees with painful motion beginning at 15 degrees. Right lateral rotation was from 0 to 25 degrees with painful motion beginning at 20 degrees. Left lateral rotation was from 0 to 10 degrees with painful motion beginning at 10 degrees. The examiner noted that the diminished flexion and rotation to the left were accounted for by muscle weakness status post CVA on the left. Otherwise, the Veteran was able to balance well on his right leg and exerted maximal effort to perform the required range of motion testing. There was no change in active range of motion on repetition. He was able to perform repetitive-use testing with 3 repetitions. He did not have additional limitation in range of motion of the thoracolumbar spine following repetitive use testing. With repetitive use, he did have less movement than normal, weakened movement, excess fatigability, pain on movement and interference with sitting standing and/or weight bearing. There was no localized tenderness or pain to palpitation for joints and/or the soft tissue of the thoracolumbar spine. There was no guarding or muscle spasm of the thoracolumbar spine. There was no atrophy. On sensory examination, his right foot/toes sensation to touch was decreased. Straight leg testing was negative. The Veteran had intermittent mild numbness in his right lower extremity. The examiner specifically described the severity of the Veteran's radiculopathy as mild. He did not have intervertebral disc syndrome of the thoracolumbar spine and there were no incapacitating episodes over the past 12 months. The Veteran used a wheelchair and a brace due to his left sided weakness status-post CVA. The Veteran had arthritis but did not have a vertebral fracture. There was no evidence of ankylosis of the thoracolumbar spine. The Veteran underwent a VA examination in November 2012. He presented with complaints of intermittent low back pain. He denied any radiation of the pain but did complain of intermittent tingling of the left foot and toes. The examiner noted that left hemiparesis was present secondary to a CVA in 2009. He reported that he got flare-ups 4 to 5 times a month which he treated with rest and aspirin. He did not contact his healthcare provider during these flare-ups. On examination, forward flexion was from 0 to 40 degrees with painful motion beginning at 40 degrees. Extension was from 0 degrees. Right lateral flexion was from 0 to 20 degrees with painful motion beginning at 20 degrees. Left lateral flexion was from 0 to 20 degrees with no objective evidence of painful motion. Right lateral rotation was from 0 to 20 degrees with painful motion beginning at 20 degrees. Left lateral rotation was from 0 to 15 degrees with painful motion beginning at 15 degrees. The Veteran did not have any additional limitation in range of motion of the thoracolumbar spine following repetitive-use testing. He did have more movement than normal and pain on movement. The Veteran experienced pain with palpation of the bilateral lumbar paraspinal muscles. He did not have guarding or muscle spasms. Muscle strength testing and the sensory examination were normal. He did not have muscle atrophy and straight leg raising tests were normal. He did not have any radicular pain or any signs or symptoms of radiculopathy. He had no other neurologic abnormalities or findings related to a thoracolumbar (spine) condition (such as bowel or bladder problems/pathologic reflexes). He had intervertebral disc syndrome of the thoracolumbar spine but did not have any incapacitating episodes over the past 12 months due to intervertebral disc syndrome. He used a left leg brace and wheelchair for weakness secondary to a left hemiparesis secondary to a CVA in 2009. Arthritis was documented but the Veteran did not have a vertical fracture. Upon review of all relevant evidence of record, the Board finds that the disability picture associated with the Veteran's low back disability does not meet or more nearly approximate the criteria for an evaluation greater than 20 percent at any point in time. There is no evidence of flexion limited to 30 degrees or less. The Veteran does not have unfavorable or favorable ankylosis of the lumbar spine or the entire spine. The Board has considered the Veteran's complaints of pain and impairment related to his disability. On review, however, the overall objective evidence does not support an evaluation greater than 20 percent based on functional impairment due to pain on motion and other factors. The Board has also considered whether an increased rating may be available under the alternative criteria for rating intervertebral disc syndrome based on incapacitating episodes. However, while the Veteran has been diagnosed with intervertebral disc disease, the record is absent for any incapacitating episodes. As noted above, a rating in excess of 20 percent based on incapacitating episodes requires evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Thus, as the Veteran had no incapacitating episodes over the past 12 months due to intervertebral disc syndrome, a rating in excess of 20 percent under the Formula for Rating Intervertebral Disc Syndrome based on Incapacitating Episodes is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5243. With regard to assigning a higher disability rating according to 38 C.F.R. § 4.40 and 4.45, the Board notes that the Veteran has reported stiffness, weakness, lack of endurance, and fatigability. However, there is no objective evidence of record demonstrating that the Veteran experiences additional functional loss or limitation of motion due to these symptoms so significant as to meet the criteria for an increased evaluation, i.e. forward flexion of the thoracolumbar spine of 30 degrees or less. The Board notes also that limitation of motion due to pain was considered in recording his range of motion measurements. Moreover, the December 2011 and November 2012 VA examiners noted that there was no loss of function with repetitive use, except as noted. The Board also notes that the VA examiners noted that the Veteran reported experiencing flare-ups which occurred with increased activity or weather. Most recently, the Veteran reported that these flare-ups occurred 4 to 5 times a month which he treated with rest and aspirin. The Veteran did not contact his healthcare provider during these flare-ups. Thus, the Veteran's flare-ups are relatively infrequent and fairly short in duration and based on the frequency and duration of such episodes, the Board finds that the overall impairment resulting from his back disability would still more closely approximate no more than a 20 percent rating. With no objective evidence that the Veteran meets the criteria for an increased evaluation based on limitation of motion even considering subjective symptoms such as pain, the Board concludes that the greater weight of evidence is against assigning an evaluation in excess of 20 percent as contemplated by the holding in Deluca. Thus, the weight of the evidence is against the grant of a disability rating in excess of 20 percent, based on orthopedic findings. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21 (2012). The Board notes that the Veteran demonstrated some sensory deficit as the December 2011 VA examiner noted that the Veteran had intermittent mild numbness in his right lower extremity. As a result, in October 2012, the RO granted service connection for right lower extremity radiculopathy at a 10 percent disability evaluation for mild incomplete paralysis of the sciatic nerve of the lower extremity under Diagnostic Code 8520. The December 2011 VA examiner specifically described the severity of the Veteran's radiculopathy as mild and there is no indication that incomplete paralysis is more than mild throughout the appellate period to warrant a disability rating in excess of 10 percent. Moreover, as noted above, the Veteran has not disagreed with the October 2012 grant of a separate evaluation for right lower extremity radiculopathy at a 10 percent disability evaluation. The Board notes that in an October 2013 Brief, the Veteran's representative argued that the Veteran's low back disability impacted his ability to work and should therefore be referred for extra-schedular consideration. However, the Board notes that it has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b) (1), for exceptional cases where scheduler evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three- step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's 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 extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's service-connected bilateral sacroiliac joint, fusion, with degenerative changes of L5-S1is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disabilities with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology for service-connected bilateral sacroiliac joint, fusion, with degenerative changes of L5-S1. There is no evidence in the medical records of an exceptional or unusual clinical picture and again, the Board notes that the Veteran's inferred claim for entitlement to a TDIU has been remanded to the RO for additional development. The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b) (1) is not warranted. ORDER Entitlement to an increased rating for arthritis of the bilateral sacroiliac joint, fusion, with degenerative changes of L5-S1, currently rated as 20 percent disabling is denied. REMAND As noted in the Introduction above, the Court has held that TDIU is encompassed in a claim for increased rating or the appeal of an initial rating when such is reasonably raised in the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, the issue of entitlement to TDIU should be adjudicated by the RO in light of the Court's decision in Rice. Additionally, the Board may not reject a claim for a TDIU without producing evidence that the Veteran can perform work that would produce sufficient income to be other than marginal. Indeed, VA's duty to assist requires that VA obtain an examination that includes an opinion on the effect of the Veteran's service-connected disability or disabilities on his ability to work. Friscia v. Brown, 7 Vet. App. 294 (1994). On VA examination in December 2011, the VA examiner noted that worked as a farmer until he had to leave farm work due to back pain the late 1960's. The Veteran attempted construction work for a while but when his back could not tolerate this he worked at a position in maintenance at a hospital in 1969. In July 1995, the Veteran elected early retirement from his job in maintenance due to back pain. While the examiner noted the Veteran's employment history and how it related to back pain, an opinion was not provided on whether the Veteran's service-connected disabilities precluded him from employment. Therefore, on remand, the originating agency will be requested to obtain a medical opinion that addresses the effect the Veteran's service-connected disabilities have on his ability to obtain and maintain employment. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated his for the disabilities on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. The Veteran should be afforded a VA examination by a medical provider with appropriate expertise to determine the impact of the service-connected disabilities on the Veteran's employability. The claims file must be made available for review by the examiner should note such review in the report. The examiner should determine whether it is at least as likely as not that the Veteran's service-connected disabilities are sufficiently severe, by themselves, to render him unable to secure and follow a substantially gainful occupation without regard to his nonservice-connected disabilities, or his age. The examiner should provide the rationale for all opinions expressed. 3. Thereafter, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs