Citation Nr: 1340247 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 11-10 412 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to an evaluation in excess of 40 percent for residuals, lower back strain, with central disc herniation at L5-S1. 3. Entitlement to an extension beyond March 31, 2011, for a total convalescent rating under the provisions of 38 C.F.R § 4.30 based on surgery for a lower back strain, with central disc herniation at L5-S1. 4. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active service from June 1986 to June 1990. This matter comes before the Board of Veterans' Appeals (Board) from December 2008, February 2011 and February 2013 rating decisions of Department of Veterans Affairs (VA) Regional Offices (RO). This claim was previously before the Board in March 2012, at which time the Board remanded it for additional development. The requested development has been completed, and the claim is properly before the Board for appellate consideration. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to service connection for sleep apnea and to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's residuals, lower back strain, with central disc herniation at L5-S1, caused incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 2. The competent evidence reflects that the Veteran did not require convalescence beyond March 31, 2011, following spine surgery. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 60 percent for residuals, lower back strain, with central disc herniation at L5-S1, have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.4, 4.45, 4.71a, Diagnostic Code 5243 (2013). 2. The criteria for an extension beyond March 31, 2011, for a total convalescent rating under the provisions of 38 C.F.R. § 4.30 based on surgery for residuals, lower back strain, with central disc herniation at L5-S1, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.30 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Here, the VCAA duty to notify for the issue of an increased evaluation for residuals, lower back strain, with central disc herniation at L5-S1, was satisfied by way of letters sent to the Veteran in July 2008 and December 2010 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letters informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. With respect to the Dingess requirements, in the July 2008 and December 2011 letters, the RO provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date. The VCAA duty to notify for the issue of an extension beyond March 31, 2011, for a total convalescent rating under the provisions of 38 C.F.R § 4.30 was provided in May 2011, after the initial RO action. While this was in contravention of Pelegrini, any error as to the timing of the notice provided was cured by the RO's subsequent readjudication of the claim presented through its preparation and mailing of the statement of the case in September 2011. See Prickett v. Nicholson, 20 Vet. App. 370, 376-78 (2006) (validating the remedial measures of issuing fully compliant VCAA notification and readjudicating the claim in the form of a supplemental statement of the case to cure timing of a notification defect). The Veteran was also advised of the criteria for rating a disability and those governing effective dates of awards in the May 2011 letter. Next, VA has a duty to assist a Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains service treatment records, private treatment records, and VA treatment records. The Veteran had a VA examination in March 2013, the results of which are adequate for the purposes of deciding the claim on appeal. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In view of the forgoing, the Board finds that VA has satisfied its duties to notify and assist under the governing law and regulations. II. Increased Evaluation The Veteran is seeking an evaluation greater than 40 percent for residuals, lower back strain, with central disc herniation at L5-S1. Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4 (2013). The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C.A. § 1155 (2002). The disability must be viewed in relation to its history. 38 C.F.R. § 4.1 (2013). A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7 (2013). Where the appeal arises from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Thus, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased ratings and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Diagnostic Code 5243 provides that intervertebral disc syndrome (IVDS) is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The General Rating Formula for Diseases and Injuries of the Spine provides a 40 percent disability rating for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2) provides that, if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be rated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a. 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 Veteran wrote in an August 2008 statement that he had constant pain due to his back and was severely limited due to it. The Veteran had a VA examination for his spine in August 2008 at which he reported pain that radiated down his legs. He had stiffness, flare-ups, numbness and weakness. The flare-ups occurred every morning and caused stabbing pain that lasted for a few hours. A precipitating factor was staying still for long periods of time and alleviating factors were stretching and activity. He could walk for half a block and stand for one to three minutes before having to stop and rest due to his back. Medication and injections from the spine clinic provided some relief. He was limited in his work as a teacher because he could not stand for prolonged periods of time, and activities of daily living were also limited. On examination there was tenderness, spasm and weakness in the paraspinal muscles in the lower back and buttocks. Posture showed kyphosis. Range of motion of the thoracolumbar spine was 0 to 10 degrees each for forward flexion, extension, bilateral lateral flexion, and bilateral lateral rotation. There was pain with the first attempt of all movements, and there no change with repetitive testing and no limitation due to fatigue, weakness, or incoordination. The diagnosis was lumbar spine strain, spasm of the paraspinal muscles, and degenerative disc disease. November 2008 private treatment records indicate that the Veteran had pain in the middle of the lumbar area that radiated down. An epidural steroid injection in September 2008 provided three to four days of pain relief and decreased the pain to 5 out of 10 in intensity. It had since increased to 8 out of 10. The impression was intractable back pain radiating down the left leg, and to a lesser extent, down the right leg. That was suggestive of L5 and/or S1 radiculopathies and was consistent with the Veteran's report of a herniated disc. It was noted at August 2009 and October 2009 VA treatment that the Veteran had worsening lumbar radicular pain and that he had had multiple injections over the past 5 years that had not provided relief for more than two weeks. At December 2009 VA treatment the Veteran reported that he left his job as a teacher because he could not tolerate standing for extended periods of time due to his back. November 2009 private treatment records indicate an exacerbation of a low back injury due to lifting. Range of motion of the lumbar spine was flexion to 10 degrees, bilateral lateral flexion to 5 degrees, and 0 degrees of extension and bilateral rotation. There was pain with all motion. Also of record are several statements dated from February 2010 on from family members, coworkers and friends regarding his severe back pain and the limitations that it causes. As discussed below, the Veteran underwent surgery to implant a spinal cord stimulator in December 2010 and February 2011, and it was removed in June 2012 due to not being effective. The Veteran had another VA examination in April 2010 at which he reported constant low back pain with radiation down the buttocks. He also complained of stiffness, numbness and weakness. The Veteran reported incapacitating episodes of spine disease and that he was unable to walk for more than a few yards. He had been on medical leave due to his low back condition since November 2009. On examination of the thoracic spine there was guarding and pain with motion. There was no ankylosis of the spine. Motor, sensory and reflex examinations were normal. Range of motion testing could not be performed due to severe pain. There was no increased pain on repetitive use. The examiner felt that the back caused significant effects on the Veteran's usual occupation due to decreased concentration, inappropriate behavior, problems with lifting and carrying, weakness or fatigue, decreased strength in the lower extremities, and pain. Activities of daily living were severely affected. The Veteran had a VA examination in December 2010 at which he reported that his back had gotten progressively worse. The pain was in the low back, was constant, and worsened with prolonged standing and walking. The Veteran described the pain as aching, throbbing, sharp at times, and severe. The pain radiated down the legs. The Veteran did not have incapacitating episodes of spine disease. He used a cane and could walk for 150 feet. The spine had kyphosis and there was no ankylosis. Range of motion could not be tested due to the recent placement of stimulator wires. Reflex, sensory and motor examinations were normal. The examiner felt that the effects on occupational activities were decreased concentration, inappropriate behavior, poor social interactions, decreased mobility, problems with lifting and carrying, lack of stamina, weakness or fatigue, and decreased strength. Sedentary employment would not be precluded but light physical employment would be limited. Activities of daily living were affected in that the Veteran could only perform sedentary activities due to low back pain. At September 2011 VA treatment the Veteran reported that his back pain was very severe. X-rays showed mild degenerative changes. Private treatment records from October 2011 indicate that the Veteran complained of chronic low back pain, and he was noted to have a permanent disability that did not respond to treatment. The implantation of the spinal cord stimulator had not resolved or reduced the pain. Range of motion was flexion to 25 degrees, extension to 10 degrees, left lateral flexion to 12 degrees, right lateral flexion to 10 degrees, left rotation to 15 degrees, and right rotation to 12 degrees. A September 2012 MRI of the lumbar spine showed a broad based disc bulge at L4-L5 with facet joint and ligamentum flavum hypertrophy and narrowing of the lateral recesses with caudal foraminal narrowing. At L5-S1 there was a broad-based disc osteophyte with hypertrophied facet joints and mild bilateral foraminal narrowing. The Veteran had a VA examination for his back in January 2013 at which he said that he felt that the February 2011 implantation of the spinal cord stimulator made the symptoms worse. The pain was rated as 9 out of 10 and the Veteran said that he did not have any good days. He spent most of his days at home laying in bed or on a sofa. Range of motion could not be tested at the examination. The results of the physical examination cannot be given probative value because the Veteran wrote that the examination report contains results for testing that was not performed. The examiner noted that the Veteran used a wheelchair, braces, and a walker on an occasional basis. A private provider who treated the Veteran for his back in March 2013 felt that the Veteran had a permanently disabling condition that had failed to respond to any and all available treatment. Due to pain levels that were 8 out of 10 the Veteran was advised to have bedrest for the next 8 weeks. The Veteran had another VA examination in March 2013. Range of motion testing could not be performed, although the examiner noted that the Veteran bent forward greater than 65 degrees when getting out of his wheelchair. Muscle strength and reflexes were normal. The examiner noted that the Veteran did not have IVDS. This portion of the examination report cannot be given probative value because it is not consistent with the Veteran's diagnosis. The examiner felt that the Veteran needed to use braces and a cane on a regular basis and needed to use a walker on an occasional basis. The Veteran said that the assistive devices were not helping and that he needed a wheelchair. Regarding bowel problems, May 2012 VA treatment notes indicate no new bowel symptoms, and at June 2012 treatment he complained of constipation. The March 2013 VA examiner did not make any findings regarding the bowels and no VA or private examiner has indicated that the Veteran has bowel problems due to his back disability. Moreover, as the Veteran's back disability is now rated under Diagnostic Code 5243, a separate rating for any bowel impairment would not be warranted. The Board finds that the Veteran is entitled to an evaluation of 60 percent for IVDS, the next highest available after 40 percent, because the March 2013 private treatment indicates that he required 8 weeks of bedrest. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). The examination and treatment records show that the Veteran had had the level of symptomatology from March 2013 treatment for an extended period of time. Sixty percent is the highest evaluation available under Diagnostic Code 5243. See 38 C.F.R. § 4.71a. The Veteran does not qualify for a 100 percent evaluation, the next highest available, under the General Formula for Diseases and Injuries of the Spine because the record does not show unfavorable ankylosis of the entire spine. See id. The VA examinations and treatment records show that the Veteran has had pain on range of motion testing and that there were times when range of motion testing could not be performed due to pain. 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). Furthermore, the Veteran now has a separate 30 percent evaluation for pain disorder associated with psychological factors and a general medical condition associated with residuals, lower back strain with central disc herniation at L5-S1, and for radiculopathy to the lower extremities. The April 2010 VA examiner did not feel that there was increased pain on repetitive use, and at the August 2008 VA examination there was no change with repetitive testing and no limitation due to fatigue, weakness, or incoordination. Therefore, an evaluation in excess of 60 percent for the low back disability is not justified under 38 C.F.R. §§ 4.40 and 4.45, and the decision in DeLuca. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111(2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the applicable rating criteria adequately contemplate the manifestations of the Veteran's residuals, lower back strain, with central disc herniation at L5-S1, which include limitation of motion, pain, and required rest. The rating criteria are therefore adequate to evaluate the bilateral hearing loss, and referral for consideration of an extraschedular rating is not warranted. Finally, in light of the holding in Hart, supra, the Board has considered whether the Veteran is entitled to "staged" ratings for his service-connected residuals, lower back strain, with central disc herniation at L5-S1, as the Court indicated can be done in this type of case. Based upon the record, we find that at no time during the claims period has the disability on appeal been more disabling than as currently rated under the present decision of the Board. III. Extension of Temporary 100 percent Evaluation Beyond March 31, 2011 The Veteran is seeking an extension beyond March 31, 2011, for a total convalescent rating under the provisions of 38 C.F.R § 4.30 based on surgery for a lower back strain, with central disc herniation at L5-S1. A temporary total rating (100 percent) for convalescence will be assigned from the date of hospital admission and continue for 1, 2, or 3 months from the first day of the month following hospital discharge when treatment of a service connected disability results in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body case, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight- bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. An extension of 1, 2, or 3 months beyond the initial 3 months may be granted and extensions of 1 or more months up to 6 months beyond the initial 6 months period may be made, upon request. 38 C.F.R. § 4.30. The U.S. Court of Appeals for Veterans Claims (Court) has determined that the inability to return to any employment would, in fact, show a need for continuing convalescence under 38 C.F.R. § 4.30. Seals v. Brown, 8 Vet. App. 291 (1995). VA treatment records indicate that the Veteran underwent a spinal cord stimulation placement in December 2010 and on February 24, 2011. The treatment records show that he was discharged the day after the February 2011 surgery. The discharge instructions state that he was not to perform any strenuous activities until released by the neurosurgery department. Neurosurgery outpatient treatment notes from 12 days after the surgery states that the surgical staples were removed, and the Veteran was discharged from the neurosurgery clinic. At March 2011 VA treatment the Veteran reported pain after the February surgery that was made bearable with medication. He said that the pain was worse with ambulation and was relieved with lying down. March 2011 VA social work treatment notes state that the Veteran had difficulties with activities of daily living. The Veteran wrote in an April 2011 statement that the second surgery was more involved and painful and required a longer convalescence that the December 2010 surgery. In May 2011 the Veteran submitted a brochure from a private medical facility about neurostimulation for the management of chronic pain. It states that it was important to restrict the amount of bending, twisting, and reaching for six to eight weeks after surgery. May 2011 VA treatment records indicate that the Veteran did not feel that the neurostimulator was helping with his back pain. The March 2013 VA examiner felt that the Veteran did not require convalescence beyond March 31, 2011 due to the February 2012 surgery. The examiner wrote that he based this opinion on a review of the available medical records, medical literature, and clinical experience. He noted that the surgeries were documented as uneventful without any objective evidence of complications. There were no postoperative residuals including an incompletely healed surgical wound, therapeutic immobilization of one or more major joint, application of a body cast, house confinement by necessity, or being prohibited from regular weight bearing. The examiner also noted that the failure of the spinal cord stimulator was not a complication of the surgery. The Board observes that the objective medical evidence of record does not indicate the presence of severe postoperative residuals of his spinal cord stimulation placement subsequent to March 31, 2011. There is no medical evidence of incompletely healed surgical wounds, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement. 38 C.F.R. § 4.30. As discussed above, the March 2013 VA examiner did not feel that the Veteran required convalescence. The Board notes that while the record shows that the December 2010 and February 2011 surgery was not successful in reducing the Veteran's back pain, the evidence as a whole fails to show that the Veteran required convalescence beyond March 31, 2011. The preponderance of the evidence is therefore against the extension of a total convalescent rating under the provisions of 38 C.F.R. § 4.30 beyond March 31, 2011. ORDER An evaluation of 60 percent for residuals, lower back strain, with central disc herniation at L5-S1, is granted. An extension beyond March 31, 2011, for a total convalescent rating under the provisions of 38 C.F.R. § 4.30 based on surgery for a lower back strain, with central disc herniation at L5-S1, is denied. REMAND The Veteran is seeking service connection for sleep apnea. In a February 2013 rating decision, the RO denied service connection. The Veteran submitted a statement in June 2013 that the Board interprets as a notice of disagreement that was received by VA in July 2013. However, a review of the paper and electronic records shows that the RO has not issued the Veteran a Statement of the Case (SOC) with respect to this issue. Under the circumstances, the Board has no discretion and is obliged to remand this issue to the RO for the issuance of an SOC to the Veteran. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The Veteran seeks entitlement to a TDIU. In this decision, the Board has remanded the issue of service connection for sleep apnea. The adjudication of this issue may impact whether the Veteran satisfies the schedular requirements for a TDIU rating, as set forth in 38 C.F.R. § 4.16(a). As such, the claims are inextricably intertwined and must be considered together, and a decision by the Board on the Veteran's TDIU claim would, at this point, be premature. See Henderson v. West, 12 Vet. App. 11, 20 (1998). Furthermore, the treating provider from March 2013 felt that the Veteran had reached maximum medical improvement but had a permanent impairment that prevented him from maintaining employment. In contrast, the March 2013 VA examiner felt that the Veteran's service-connected spine condition should not preclude light or sedentary occupational duties. Therefore, the Veteran was not precluded from gainful employment. The VA examiner did not have the opportunity to review the March 2013 private treatment notes since they had not been added to the claims file at the time of the examination. Furthermore, the VA examiner's rationale indicates that the opinion was based on the low back disability rather than on all of the Veteran's service-connected disabilities. Therefore, a new opinion must be obtained before the claim can be decided on the merits. VA treatment records to December 2012 have been associated with the claims file. The RO should attempt to obtain all relevant VA treatment records dated from December 2012 to the present, while the claim is in remand status. Bell v. Derwinski, 2 Vet. App. 611 (1992). 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. Request that the Veteran provide sufficient information, and, if necessary, authorization, to obtain any additional evidence, not already of record, which pertains to the claims for service connection for sleep apnea and entitlement to a TDIU. Document all unsuccessful attempts to obtain such records. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of or who were contemporaneously informed of his in-service and post-service symptoms of sleep apnea, as well as the impact of his service-connected disabilities on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Obtain VA treatment records dated from December 2012 to the present. All attempts to obtain those records should be documented in the claims file. 4. After associating any pertinent, outstanding records with the claims folder, afford the Veteran an examination with a vocational expert to determine the impact of the service connected disabilities on his ability to secure or follow a substantially gainful occupation. The service-connected disabilities are: residuals, lower back strain, with central disc herniation at L5-S1; pain disorder associated with both psychological factors and general medical condition; radiculopathy to the lower extremities; and bilateral tinea pedis with onychomycosis of the toenails. The Veteran's educational level, prior vocational training and work experience should be considered in rendering an opinion. All findings and conclusions should be set forth in a legible report. 5. Then readjudicate the appeal. If the benefits sought on appeal remain denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC) and given a reasonable opportunity to respond. 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