Citation Nr: 1337287 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 13-06 295 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to a rating in excess of 20 percent for service-connected degenerative disc disease L4-L5 with chronic low back pain (hereinafter, "low back disorder"). 2. Entitlement to service connection for a cervical spine disorder, to include as secondary to service-connected low back disorder. 3. Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from February 1990 to February 1994. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Board acknowledges that the RO did not formally adjudicate the claim of entitlement to a TDIU as part of the January 2011 rating decision. However, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim of entitlement to a TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Here, the Board has concluded that the TDIU claim has been raised by the record, and must be addressed in future adjudication(s) of this appeal. 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 Veteran provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in August 2013. A transcript of this hearing is of record. In addition, the Veteran submitted evidence at this hearing and waived initial consideration of such by the agency of original jurisdiction (AOJ) in accord with 38 C.F.R. § 20.1304(c). For the reasons addressed in the REMAND portion of the decision below, the Board finds that further development is required regarding the cervical spine and TDIU claims. Accordingly, these claims are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The record, taking into account the Veteran's complaints of pain, reflects that her service-connected low back disorder more nearly approximates the criteria of flexion of the thoracolumbar spine 30 degrees or less. 2. Resolving all reasonable doubt in the Veteran's favor, her service-connected low back disorder is productive of neurologic impairment of the right lower extremity that results in disability analogous to mild incomplete paralysis of the sciatic nerve. 3. Resolving all reasonable doubt in the Veteran's favor, her service-connected low back disorder is productive of neurologic impairment of the right lower extremity that results in disability analogous to moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for a 40 percent rating for the Veteran's service-connected low back disorder are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5235-5243 (2013). 2. The criteria for a separate compensable rating of 10 percent for neurologic impairment of the right lower extremity as associated with service-connected low back disorder are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.40, 4.45, 4.123, 4.124, 4.124a; Diagnostic Code 8520 (2013). 3. The criteria for a separate compensable rating of 20 percent for neurologic impairment of the left lower extremity as associated with service-connected low back disorder are met. 38 U.S.C.A. §§ 1155 , 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.40, 4.45, 4.123, 4.124, 4.124a; Diagnostic Code 8520 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The Board notes at the outset that VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Board decision below, however, constitutes a total grant of benefits sought on appeal with respect to the low back claim. In her August 2013 testimony before the Board, the Veteran expressly limited her appeal of the low back to a 40 percent rating. See Transcript p. 8. Because the Board in the decision below grants the Veteran's claim for a 40 percent disability, the decision constitutes a total grant of benefits sought on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). As this represents a complete grant of the benefit sought on appeal with respect to this claim, no discussion of VA's duty to notify and assist is necessary. In any event, the Board observes that the Veteran was sent notification regarding her low back claim via a June 2010 letter, and she has not demonstrated any prejudice with regard to the content or timing of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Further, various records were obtained and considered in conjunction with the low back claim, and nothing indicates the Veteran has identified the existence of any evidence relevant to that claim that has not been obtained or requested. She had the opportunity to present evidence and argument in support of her case, to include at the August 2013 hearing and has not identified any error or prejudice therein. She was also accorded a VA examination in June 2010 which evaluated the severity of her service-connected low back disorder. Thus, the duties to notify and assist have been satisfied in this case. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity 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 v. Nicholson, 492 F.3d 1372, 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). 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Legal Criteria and Analysis Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations applies, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. Thus, 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. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). In this case, the Veteran has consistently complained of low back pain throughout the pendency of this case. Therefore, the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 are applicable and will be considered in evaluating the service-connected disability. The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that the rule from Francisco does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. More recently, the Court held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). With regard to the Veteran's request for an increased schedular evaluation, the Board will only consider the factors as enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). 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 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. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Further, the normal ranges of motion for each component of spinal motion are the maximum that can be used for calculation of the combined range of motion. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2), as added by 68 Fed. Reg. 51,454 (Aug. 27, 2003). The General Rating Formula for Diseases and Injuries of the Spine provides that 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, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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. An evaluation of 20 percent is warranted 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 is 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. An evaluation of 40 percent is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. An evaluation of 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. An evaluation of 100 percent requires unfavorable ankylosis of the entire spine. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5), as added by 68 Fed. Reg. 51,454 (Aug. 27, 2003). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that an evaluation of 10 percent is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. An evaluation of 20 percent is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. An evaluation of 40 percent is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Finally, an evaluation of 60 percent requires intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For the purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Intervertebral Disc Syndrome, Note (1); see also 69 Fed. Reg. 32, 449 (June 10, 2004). In this case, the Board notes that the June 2010 VA examination found the Veteran to have forward flexion to 40 degrees. However, the Veteran has contended, to include at her August 2013 hearing, that these findings do not accurately reflect her level of impairment during flare-ups of pain. It was noted on this examination that she reported daily constant aching, with flare-ups of pain of 10/10 associated with weather changes or physical activity overuse. She also reported that the flare-ups lasted from 1 to 7 days; indicated that she could not walk more than 2 blocks, nor sit or stand more than 30 minutes; she had to rest during flare-ups, that physical activity was precluded, and activities of daily living were limited to essentials. Her symmetry and rhythm of spinal motion was found to be slow and stiff movement with apparent discomfort. Nevertheless, no opinion appears to have been promulgated on this examination regarding the extent of her limitation of motion during flare-ups. Further, the Veteran indicated at her August 2013 hearing that she was only able to obtain the extent of forward flexion on that examination due to the assistance of the examiner. See Transcript p. 7. Moreover, the Veteran submitted an August 2013 statement from Carterville Chiropractic which indicates forward flexion to 30 degrees. In view of the foregoing, the Board finds that the record, taking into account the Veteran's complaints of pain, reflects that her service-connected low back disorder more nearly approximates the criteria of flexion of the thoracolumbar spine 30 degrees or less. The Board also reiterates that the law mandates resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations applies, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7. Consequently, the Board concludes that she is entitled to a rating of 40 percent under the General Rating Formula for Diseases and Injuries of the Spine. As already noted, the Veteran has limited her appeal of the low back to a 40 percent rating, which that Board has found to be warranted in this case. Therefore, no discussion of entitlement to a rating in excess of 40 percent appears to be warranted, to include consideration of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1). In any event, she does not appear to have ankylosis of the thoracolumbar spine or incapacitating episodes as defined by VA regulations having a total duration of at least 6 weeks during the past 12 months. For example, the June 2010 VA examination reported she had no ankylosis or incapacitating episodes. Thus, higher ratings do not appear to be warranted under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Moreover, her service-connected low back disorder is productive of pain and functional impairment, manifestations that are contemplated in the rating criteria. Therefore, the rating criteria appear adequate to evaluate this service-connected disability and referral for consideration of extraschedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board does note, however, that the Veteran has contended she has neurologic impairment of her lower extremities due to her service-connected low back disorder, and should be evaluated accordingly. Note (1) to the General Rating Formula for Diseases and Injuries of the Spine provides that associated objective neurologic abnormalities are to be separately evaluated under the appropriate Diagnostic Code. In this case, the June 2010 VA examination did conduct a neurologic evaluation of the Veteran. Granted, this examination did not specifically diagnose any neurologic abnormalities, and found on sensory evaluation that sensation to light touch was fully intact for the face, torso, and all extremities. Motor examination also found that muscle mass in all extremities was well developed, no atrophy. However, the examination also found impairment of muscle strength and reflexes. Specifically, muscle strength of the right leg was 4/5, while the left leg was 3/5. Reflexes were 2/4 for the right leg, and 1-2/4 for the left. Inasmuch as these findings were conducted as part of the neurologic evaluation portion of this spine examination, and resolving reasonable doubt in favor of the Veteran, the Board finds that the record does indicate the service-connected low back disorder is productive of neurologic impairment of the lower extremities. In evaluating the extent of this neurologic impairment, the Board finds that it appears analogous to impairment of the sciatic nerve, which is evaluated pursuant to the criteria found at 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under this Code, complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Incomplete paralysis of the sciatic nerve warrants a 60 percent evaluation if it is severe with marked muscular dystrophy, a 40 percent evaluation if it is moderately severe, a 20 percent evaluation if it is moderate or a 10 percent evaluation if it is mild. In this case, the evidence, to include the aforementioned findings of the June 2010 VA medical examination as well as the Veteran's own contentions, reflects the neurologic impairment is indicative of mild incomplete paralysis for the right lower extremity, and moderate incomplete paralysis for the left lower extremity. As such, she is entitled to separate ratings of 10 percent for neurologic impairment of the right lower extremity, and a 20 percent rating for the left lower extremity. For these reasons, the Board finds that the Veteran is entitled to a 40 percent rating for her service-connected low back disorder, as well as separate ratings of 10 and 20 percent, respectively, for associated neurologic impairment of the right and left lower extremities. In making this determination, the Board notes that it took into consideration the potential of "staged" ratings pursuant to Fenderson and Hart. However, a thorough review of the evidence of record did not indicate any distinctive period(s) where these disabilities met or nearly approximated the criteria for higher rating(s). Therefore, no "staged" ratings are warranted in this case. ORDER A rating of 40 percent for service-connected low back disorder is granted, subject to the law and regulations regarding the payment of monetary benefits. A separate compensable rating of 10 percent for neurologic impairment of the right lower extremity as associated with service-connected low back disorder is granted, subject to the law and regulations regarding the payment of monetary benefits. A separate compensable rating of 20 percent for neurologic impairment of the left lower extremity as associated with service-connected low back disorder is granted, subject to the law and regulations regarding the payment of monetary benefits. REMAND As to the Veteran's claim of service connection for a cervical spine disorder as secondary to the service-connected low back disorder, the Board notes that service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In this case, the Veteran was accorded a VA medical examination in September 2010 which included an opinion, to the effect, that her cervical spine disorder was not caused by the service-connected low back disorder. However, this examination did not address the issue of secondary aggravation in accord with Allen. Without such an opinion, the Board must find that this examination is not adequate for resolution of this case. Moreover, the Veteran testified at her August 2013 hearing to an in-service neck injury, and the September 2010 VA examination did not address the issue of direct service connection. This further supports a finding that the September 2010 VA examination is not adequate for resolution of this case. Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). Thus, a remand is required to accord the Veteran a new examination that does adequately address her claim of service connection for a cervical spine disorder. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (When the medical evidence of record is insufficient, in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions.). The Board further notes that the August 2013 statement from Carterville Chiropractic indicates there may be outstanding treatment records regarding the cervical spine disorder that are not of record. Therefore, a remand is also required to obtain any such records. Regarding the TDIU claim, as noted in the Introduction this claim was not formally adjudicated below but it is properly part of the appeal pursuant to the holding of Rice. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure or follow substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16(a). In this case, the Board has determined that the Veteran is entitled to a 40 percent rating for her service-connected low back disorder, as well as separate ratings of 10 and 20 percent, respectively, for neurologic impairment of the right and left lower extremities. She is also service-connected for residuals of total abdominal hysterectomy with scar, evaluated as 50 percent disabling; recurring occipital headaches, evaluated as 10 percent disabling; and bilateral diplopia in superior gaze secondary to Brown's Syndrome, evaluated as zero percent (noncompensable). As such, she now has a combined rating of 80 percent. See 38 C.F.R. § 4.25. Thus, she satisfies the schedular criteria for consideration of a TDIU. See 38 C.F.R. §§ 3.340, 4.16(a). Nevertheless, the Veteran has not been provided with the requisite notification of what is necessary to substantiate a TDIU claim, and a remand is required to ensure she receives such notification. Moreover, as resolution of the cervical spine claim may affect whether she is entitled to a TDIU, the Board finds that these claims are inextricably intertwined. As such, it must defer adjudication of the TDIU claim until the development deemed necessary for the cervical spine claim has been accomplished. The Board also finds that the Veteran should be accorded a VA medical examination to evaluate the affect her service-connected disabilities have upon her employability. See Colvin. 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. Send the Veteran notification pursuant to 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes an explanation as to the information or evidence needed to establish entitlement to a TDIU. 2. Obtain the names and addresses of all medical care providers who have treated the Veteran for her cervical spine disorder since January 2011 to include any treatment she received from Carterville Chiropractic. After securing any necessary release, obtain those records not on file. 3. Notify the Veteran that she may submit lay statements from herself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of her in-service and post-service neck/cervical spine symptomatology; as well as the nature, extent and severity of the symptoms of her service-connected disabilities and the impact of these conditions on her ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. After obtaining any additional records to the extent possible, the Veteran should be afforded an examination to address the etiology of her cervical spine disorder. The claims folder should be made available to the examiner for review before the examination. Following evaluation of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not that any such disability found to be present was incurred in or otherwise the result of the Veteran's active service. If the examiner determines the cervical spine disorder is not directly related to service, then the examiner should express an opinion as to whether it is at least as likely as not that it was caused or aggravated by the service-connected low back disorder. By aggravation, the Board means a permanent increase in severity that is beyond natural progression. A complete rationale for any opinion expressed must be provided, to include if the examiner determines an opinion cannot be provided without resort to speculation. 5. The Veteran should also be scheduled for an appropriate VA examination, to be conducted, if possible, by a vocational rehabilitation specialist, to evaluate the issue of entitlement to a TDIU. The claims folder should be made available to and reviewed by the examiner. All appropriate tests and studies should be conducted. Following evaluation of the Veteran, the examiner should opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that her service-connected disabilities, either alone or in the aggregate, render her unable to secure or follow a substantially gainful occupation. A complete rationale for any opinion expressed must be provided, to include if the examiner determines an opinion cannot be provided without resort to speculation. 6. After completing any additional development deemed necessary, readjudicate the issues on appeal in light of any additional evidence added to the records assembled for appellate review to include the issue of entitlement to a TDIU. If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and her representative should be furnished a Supplemental Statement of the Case (SSOC), which addresses all of the evidence obtained after the issuance of the January 2013 SOC, and provides an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. 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