Citation Nr: 1339031 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 07-02 739 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a rating higher than 40 percent for lumbosacral strain with spondylosis and ankylosing spondylitis. 2. Entitlement to an initial rating higher than 20 percent for radiculopathy of the left lower extremity. 3. Entitlement to an initial rating higher than 20 percent for radiculopathy of the right lower extremity. 4. Entitlement to a total disability compensation rating based on individual unemployability due to service-connected disability (TDIU) prior to April 9, 2013. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran and T.B. ATTORNEY FOR THE BOARD D. Johnson, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from August 1989 to October 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions, dated in July 2006 and in June 2010, of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In May 2011, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's file. In September 2011, the Board remanded the appeal for additional development which has since been completed. The issue of entitlement to 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. FINDINGS OF FACT 1. Throughout the appeal, lumbosacral strain with spondylosis and ankylosing spondylitis has been manifested by forward flexion no less than 10 degrees, without unfavorable ankylosis or incapacitating episodes having a total duration of at least 6 weeks during a 12-month period. 2. From the date of service connection, radiculopathy of the left lower extremity has been manifested by moderate incomplete paralysis of the sciatic nerve. 3. From the date of service connection, radiculopathy of the right lower extremity has been manifested by moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 40 percent for lumbosacral strain with spondylosis and ankylosing spondylitis have not been met. 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237 (2013). 2. The criteria for an initial rating higher than 20 percent for radiculopathy of the left lower extremity have not been met. 38 C.F.R. §§ 4.124a, DC 8520 (2013). 3. The criteria for an initial rating higher than 20 percent for radiculopathy of the right lower extremity have not been met. 38 C.F.R. §§ 4.124a, DC 8520 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In a claim for increase, the VCAA notice requirements are the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting Veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The RO provided pre-adjudication VCAA notice by a letter dated in July 2006. As for the content of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence). See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (to the extent of pre-adjudication VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim). The claims for higher ratings for the service-connected radiculopathy of the bilateral lower extremities arise from an appeal of the rating decision that granted service connection. Where service connection has been granted and the initial disability ratings have been assigned, the claims have been more than substantiated, the claims have been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once a claim for benefits has been substantiated, the filing of a notice of disagreement with the RO's decision rating the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable. Goodwin v. Peake, 22 Vet. App. 128 (2008). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained the service treatment records, VA and private records, and records from the Social Security Administration (SSA). The Veteran was afforded VA examinations in July 2006, in March 2007, in June 2008, in May 2010, in September 2011 and in April 2013. As the VA examiners reviewed the Veteran's history and as medical analysis was applied to the facts of the case to support the conclusion reached in the opinions, and as the disabilities were described in sufficient detail to rate the disabilities, the examinations are adequate to decide the claims. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding a medical opinion is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). As there is no indication of the existence of additional evidence to substantiate the claims, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. Rating Principles A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Lumbosacral Strain with Spondylosis and Ankylosing Spondylitis Rating of a Disability of the Musculoskeletal System A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion, weakness, or atrophy. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Spinal vertebrae are considered groups of joints. As for joints, the factors of disability reside in reductions of the joints normal excursion of movements in different planes. Factors for considerations include excess fatigability, pain on movement, swelling, atrophy of disuse, instability of station, disturbance of locomotion, interference with sitting and standing, and weight-bearing. 38 C.F.R. § 4.45; DeLuca, at 206-07. Also with periarticular pathology, painful motion is factor to be considered. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Spine Rating Criteria A disability of the spine is rated under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Under the General Rating Formula for Diseases and Injuries of the Spine, DC 5242 (degenerative arthritis of the spine) the following ratings will apply: A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. For the purpose of VA compensation, unfavorable ankylosis is defined in the VA's Schedule for Rating Disabilities as: 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. See Note 5, 38 C.F.R. § 4.71a, DC 5237. Under the General Rating Formula for Diseases and Injuries of the Spine, any objective neurological abnormality is rated separately under the appropriate neurological Diagnostic Code. Diagnostic Code 8520 is the most appropriate neurological Diagnostic Code for rating sciatica associated with a disability of the lumbar spine. Intervertebral disc syndrome is rated 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 (Formula for Rating Intervertebral Disc Syndrome), whichever method results in the higher rating. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (DC 5243), a 60 percent rating requires incapacitating episodes having a total duration of at least six weeks during the past 12 months. Evidence A private medical record dated in September 2006 shows the Veteran had an antalgic, broad-based, slow and cautious gait. Objectively, his range of motion was decreased throughout the spine. VA outpatient treatment records show complaints of chronic back pain, along with muscle spasms, and limited range of motion and mobility. The records do not contain any clinical finding of ankylosis of the thoracolumbar spine. A September 2006 treatment note shows the Veteran's lumbar spine range of motion was 20 degrees. In July 2006 on VA examination, the Veteran reported back pain that affected his mobility and activities of daily living. On physical examination, flexion was possible to 20 to 40 from degrees. Extension lacked 20 degrees to midline. Lateral flexion on the right was to 30 degrees without pain. Lateral flexion on the left was to 20 degrees without pain. Lateral rotation on the right was to 30 degrees without pain. Lateral rotation on the left was to 20 degrees without pain. On repetitive motion, there was no additional limitation due to pain, fatigue, weakness, or lack of endurance. In March 2007 on VA examination, the Veteran's thoracolumbar range of motion was minimal in all directions, including flexion, extension, lateral flexion, and rotation. The lumbar spine X-ray findings noted did not include a finding of unfavorable ankylosis. In June 2008 on VA examination, the Veteran reported increased pain and numbness in his lumbar spine and decreased mobility. He denied having any incapacitating episodes. He reported constant pain that radiated into his legs, affecting his ability to walk. On physical examination, flexion was possible to between 20 and 30 degrees. Extension lacked 20 degrees to midline with pain. The Veteran was unable to perform lateral flexion because of pain. Lateral rotation on the right and left was to 20 degrees with pain. On repetitive motion, there was no additional limitation due to pain, fatigue, weakness, or lack of endurance. In May 2010 on VA examination, the Veteran reported back pain on a daily basis. He reported having 2 episodes of incapacitating back pain. Flare-ups were reportedly unpredictable and could last several days, characterized by muscle spasm. On physical examination, flexion was to 20 degrees. Extension was to 0 degrees. Lateral flexion and lateral rotation were to less than 5 degrees bilaterally. Motion appeared painful but was not additionally limited upon repetitive motion. In September 2011 on VA examination, the Veteran reported flare-ups that prevented him leaving bed; these occurred twice a year. He denied that any physician prescribed bedrest. On physical examination flexion was to 30 degrees without pain. Extension was to 0 degrees. Lateral flexion, right and left, was to 5 degrees. Lateral rotation, right and left, was to 10 degrees. All ranges of motion pain were without objective evidence of painful motion. On repetitive motion, there was no additional limitation due to pain, fatigue, weakness, or lack of endurance. The examiner indicated the Veteran had functional impairment of his thoracolumbar spine due to less movement than normal, incoordination, disturbance of locomotion, and interference with sitting, standing, and/or weight-bearing. The examiner also indicated that the Veteran did not have unfavorable ankylosis. In July 2013 on VA examination, the Veteran complained of back pain. He reported use of assistive devices including an occasional use of a cane and constant use of a walker. Regarding flare-ups, the Veteran described sharp shooting pain in his upper and lower back; muscle spasms in his upper and lower back; and pain in his arms and legs. The Veteran reported he had had at least 2 weeks, but less than 4 weeks of incapacitating episodes over the past 12 months due to IVDS. On physical examination flexion was to 10 degrees. Pain began at 10 degrees. Extension was to 0 degrees. Lateral flexion, right and left, was to 5 degrees. Lateral rotation, right and left, was to 5 degrees. The Veteran complained of pain at the end range of motion. The Veteran was unable to perform repetitive motion as he could not perform back extension. The examiner indicated the Veteran had functional impairment of his thoracolumbar spine including less movement than normal, weakened movement, excess fatigability, incoordination, pain, deformity, and interference with sitting, standing, or weight-bearing. Analysis The service-connected lumbosacral strain with spondylosis and ankylosing spondylitis has been assigned a 40 percent rating under Diagnostic Code 5237. Under the General Rating Formula, the criteria for the next higher rating of 50 percent rating are unfavorable ankylosis of the entire thoracolumbar spine. The record shows that forward flexion was measured at 20 degrees on VA examinations in July 2006, in March 2007, in June 2008, in May 2010, and in September 2011. Forward flexion was measured at 10 degrees on VA examination in July 2013. The September 2011 VA examiner provided the clinical assessment that unfavorable ankylosis is not present. The VA and private outpatient treatment records also do not contain any clinical findings of unfavorable ankylosis. As the findings do not reflect evidence of unfavorable ankylosis of the thoracolumbar spine, the criteria for the next higher rating based on combined range of motion have not been met. Furthermore, because the 40 percent evaluation is the maximum for limitation of motion without ankylosis, DeLuca consideration is not warranted. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). As for objective neurologic abnormalities, the Veteran has separate ratings for radiculopathy which are addressed below. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a higher rating of 60 percent requires incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. On VA examination in June 2008 and September 2011, the Veteran denied having any incapacitating episodes over a 12 month period. On VA examination in May 2010 the Veteran reported having only 2 incapacitating episodes. The Veteran denied having any incapacitating episodes over a 12 month period at his hearing before the undersigned in May 2011. On VA examination in July 2013, the Veteran reported that he experienced only 2 weeks of incapacitating episodes in the prior 12-month period. In the absence of evidence of physician-prescribed bedrest, totaling at least 6 weeks during a 12 month period, the criteria for the next higher rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes have not been met. Radiculopathy of the Right and Left Lower Extremities Rating of a Disability of the Peripheral Nerve Ratings for paralysis of the sciatic nerve are set forth at 38 C.F.R. § 4.124a, DC 8520. The term "incomplete paralysis," with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. 38 C.F.R. § 4.124a. Rating Criteria Under the criteria for rating disabilities of the peripheral nerves, a 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve. A 40 percent rating is assigned for moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy of the sciatic nerve. An 80 percent rating is assigned for complete paralysis of the sciatic nerve; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost of the sciatic nerve. 38 C.F.R. § 4.124a, DC 8520. Evidence A private medical record dated in September 2006 shows the Veteran was noted to have no focal neurological deficits on general neurologic examination. In July 2006 on VA examination, straight leg extension was negative. Deep tendon reflexes were +2 and symmetrical and the Veteran's gait was antalgic. VA outpatient treatment records show complaints of back pain. On evaluation in September 2006, the Veteran's gait was steady, and there were no focal deficits or abnormal movements. Another September 2006 clinical entry shows he had difficulty walking heel to toe for a distance over 6 feet. Sensation to light touch was within normal limits. Patellar tendon reflexes were decreased, but Achilles tendon reflexes and Babinski test were normal. A December 2006 clinic note shows the Veteran complained of back pain with radiation to the bilateral thoracic area, lumbosacral spine, and bilateral hips. He also reported numbness to the posterior aspect of the right thigh. The pain was reportedly constant, but of varying intensity. On clinical examination there was decreased sensation to the right lower extremity in an L5 dermatome; sensation to light touch was otherwise intact. Motor strength was 5 of 5 in the knees and ankles and symmetrical. Reflexes were 1+ in the ankles and knees. When seen in April 2007, the Veteran denied experiencing any falls. In May 2007, his gait was observed to be antalgic; however, he had good strength in all extremities. In March 2007 on VA examination, motor strength was normal throughout, although testing was painful. The deep tendon reflexes were +2 and symmetrical. In June 2008 on VA examination, the Veteran was unable to perform straight leg raise due to pain. Motor strength was 4 out of 5 bilaterally with symmetrical bulk. Deep tendon reflexes were 1+ at the patella and Achilles. Sensory was diminished bilaterally in a stocking pattern, and his gait was antalgic. The examiner noted that there was no objective evidence of lumbar radiculopathy. Additional VA treatment notes reflect that in January 2009 the Veteran had a full range of motion in all extremities. His peripheral pulses were palpable and muscle strength was symmetric. The Veteran's gait was steady without focal deficits and he displayed no abnormal movements. On evaluation in December 2009, the Veteran's lower extremity strength was 4 of 5 proximally, and 5 of 5 throughout the rest of his muscles bilaterally. Sensation was grossly intact to light touch. In May 2010 on VA examination, the Veteran's motor strength appeared decreased symmetrically in both lower extremities, and sensation was decreased on the lateral aspect of both lower legs. Knee jerks were absent symmetrically but ankle jerks were 2+ and equal. Gait was slow and markedly limited. The assessment was clinical evidence of a bilateral lumbar radiculopathy. In September 2011 on VA examination, muscle strength testing revealed flexion in the hip flexion, knee flexion, ankle dorsiflexion and plantarflexion, and great toe extension was 4 of 5, bilaterally. Muscle atrophy was not present. Deep tendon reflexes were 2+ (normal) in the bilateral knees and ankles. Sensory examination revealed normal sensation in the bilateral thighs and knees (L3/4), but decreased sensation in the bilateral lower legs and ankles (L4/L5/S1) and in the bilateral feet and toes (L5). The Veteran's gait was antalgic. No trophic changes were visible due to peripheral neuropathy. The examiner determined that there was incomplete paralysis of the sciatic nerve that was of no more than mild severity. In July 2013 on VA examination, the Veteran complained of severe, constant pain in the bilateral lower extremities. He also reported severe paresthesias and/or dysesthesias and severe numbness in the bilateral lower extremities. On physical examination, straight leg raising test was negative bilaterally. Right and left ankle plantarflexion and dorsiflexion were 5 of 5. Right and left great toe extension was 5 of 5. Muscle atrophy was not present. Deep tendon reflexes were +2 in the knees and ankles bilaterally. On sensory examination, of the lower legs and ankles (L4/L5/S1) sensation was decreased. Sensation in the feet and toes (L5) was also decreased. The examiner indicated that the Veteran did not have any other neurologic abnormalities or findings related to his thoracolumbar spine condition such as bowel or bladder problems/pathologic reflexes. VA treatment records dated from July 2012 to July 2013 there were no focal deficits. The Veteran testified that he had radiating back pain and numbness and decreased sensation on the outer part of his foot. Analysis The service-connected radiculopathy of the right and left lower extremities have each been assigned an initial 20 percent rating under Diagnostic Code 8520 for moderate incomplete paralysis of the sciatic nerve. The Board has considered the Veteran's subjective complaints, which are credible. The objective clinical findings show that the Veteran has diminished sensation in the lower extremities. Gait is antalgic. In addition, there is decreased motor strength. The criterion for the next highest rating, a 40 percent rating, is moderately severe incomplete paralysis of the sciatic nerve. The pertinent regulations also provide that when the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Here, the objective clinical findings do not reflect more than moderate incomplete paralysis in the absence of such findings as muscle atrophy and loss of reflexes. Rather, the record shows that motor and muscle strength has been normal, that is, 5 of 5, and on occasion 4 of 5. And the deep tendon reflexes have been relatively normal at +2. None of the VA examinations or clinical evaluations showed muscle atrophy in the lower extremities. In September 2011, the VA examiner characterized the radiculopathy as mild. For these reasons, the findings do not more nearly approximate or equate to moderately severe incomplete paralysis of the sciatic nerve in either lower extremity at any time during the period of the appeal. Extraschedular Consideration While the Board does not have authority to grant an extraschedular rating in the first instance, the Board does have the authority to decide whether a claim should be referred to the VA Director of the Compensation and Pension Service for consideration of an extraschedular rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for a service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111,115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the rating criteria reasonably describe the Veteran's service-connected disability of the thoracolumbar spine. The thoracolumbar spine disability is manifested by painful motion, functional impairment, and objective evidence of neurologic abnormalities in the lower extremities. This disability picture is encompassed in the rating criteria. In other words, the Veteran does not have any symptomatology not already encompassed in the Rating Schedule under the rating criteria and the assigned schedular ratings are therefore adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). ORDER A rating higher than 40 percent for lumbosacral strain with spondylosis and ankylosing spondylitis is denied. An initial rating higher than 20 percent for radiculopathy of the left lower extremity is denied. An initial rating higher than 20 percent for radiculopathy of the right lower extremity is denied. REMAND The Veteran seeks entitlement to TDIU. He is in receipt of a combined schedular rating of 100 percent, effective April 9, 2013. Additional development is needed before deciding the TDIU claim before April 9, 2013. The records show that the Veteran was last employed in 2006 as a real estate agent. The Veteran is in receipt of Social Security disability benefits for a primary diagnosis of ankylosing spondylitis and other inflammatory spondylopathies and a secondary diagnosis of affective or mood disorder, effective June 15, 2006. As the current evidentiary record is insufficient to decide the pending TDIU claim before April 2013, a medical opinion is needed. Accordingly, the case is REMANDED for the following action: Arrange to the have the Veteran's file reviewed by physiatrist to determine: Whether it is more likely than not (greater than 50 percent probability), at least as likely as not (approximately 50 percent probability), or less likely than not (less than 50 percent probability) that: a). The service-connected disabilities of lumbosacral strain with spondylosis and ankylosing spondylitis, radiculopathy of the right lower extremity, and radiculopathy of the left lower extremity with a combined rating of 60 percent before September 2010 prevented the Veteran from obtaining or following substantial gainful employment; and, b). The service-connected disabilities of lumbosacral strain with spondylosis and ankylosing spondylitis, radiculopathy of the right lower extremity, radiculopathy of the left lower extremity, ankylosing spondylitis of the cervical spine, bilateral hearing loss, tinnitus, with a combined rating of 90 percent before April 2013 prevented the Veteran from obtaining or following substantial gainful employment The Veteran's file must be provided to the VA examiner for review. 2. After the above development is completed, adjudicate the pending TDIU claim before April 2013. If the benefit is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The 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). ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs