Citation Nr: 1342909 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 07-19 438 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to greater initial ratings for lumbar spine degenerative disc disease, rated 10 percent prior to March 22, 2011, and 20 percent from that date. 2. 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 C. Fetty, Counsel INTRODUCTION The Veteran served on active duty from March 1959 to April 1963. This appeal arises to the Board of Veterans' Appeals (Board) from a November 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which, in pertinent part, granted service connection and a 10 percent rating for degenerative disc disease of the lumbar spine. The Veteran appealed for a higher initial rating. In February 2011, the Board assumed jurisdiction over an implied claim for a TDIU and remanded both claims for further development. In April 2012, the Appeals Management Center increased the rating for the lumbar back disability to 20 percent effective March 22, 2011. Because less than the maximum available benefit for a schedular rating was awarded and because the increase was not granted effective from the initial date that service connection was awarded, the claim remains before the Board. See Fenderson v. West, 12 Vet. App. 119 (1999); AB v. Brown, 6 Vet. App. 35 (1993). The record before the Board consists of paper claims files and an electronic file known as Virtual VA. Entitlement to TDIU is addressed in the remand portion of the decision and is remanded to the RO through VA's AMC. FINDINGS OF FACT 1. The service-connected lumbar spine disability has been manifested throughout the appeal period by flexion limited to no worse than 40 degrees; neither ankylosis of the thoracolumbar spine nor incapacitating episodes of intervertebral disc syndrome having a total duration of at least 6 weeks during the last 12 months has been shown. 2. During the appeal period, pain has radiated from the low back to the right lower extremity. CONCLUSIONS OF LAW 1. For the entire appeal period, the criteria for a schedular 20 percent rating, and no higher, are met for lumbar disc disease. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5242 (2013). 2. For the entire appeal period, the criteria for a separate 10 percent schedular rating for right lower extremity radiating pain have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.10, 4.123, 4.124a, Diagnostic Code 8520 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has remanded the case for development. When the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). VA has complied with all remand orders of the Board for the low back rating claim. I. VA's Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and VA must assist the claimant by making reasonable efforts to obtain all evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b) (2013); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). A VA notice letter must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits and the notice letter must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). VA's notice requirements that are set forth at 38 U.S.C.A. § 5103(a) and at 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103 (a) and 38 C.F.R. § 3.159 (b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, VA must notify the claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. VA's duty to notify the claimant was satisfied by a letter sent to the claimant in January 2007 with regard to the claim for a higher initial disability rating. The letter addresses all of the notice elements, but was not sent prior to the initial unfavorable decision issued by the RO in November 2005. This has created a timing error. Since then, VA has remanded the case, sent an adequate notice letter in February 2011, and then issued a supplemental statement of the case in April 2012, which has remedied the timing error. In any case, the appeal stems from a grant of service connection and the initially assigned rating. Under these circumstances, no further notice is necessary. VA's duty to assist the Veteran in the development of the claim has also been met. The service treatment records and all pertinent VA and private treatment records have been obtained and associated with the file. VA examinations were performed in September 2005, February 2007, and March 2011. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The medical reports obtained in this case are adequate. The medical experts considered the pertinent evidence of record and the statements of the claimant and provided a rationale for their opinions, relying on and citing to the records reviewed. Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion has been met. See 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). II. Disability Ratings Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). Diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. The entire medical history is reviewed when making disability evaluations. 38 C.F.R. § 4.1 (2013); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2 (2013). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7 (2013). For disabilities evaluated on the basis of limitation of motion (as is the spine disability in this case), VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations, VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, or incoordination, including during flare-ups. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). 38 C.F.R. § 4.59 (2013) addresses painful motion. A portion of § 4.59 states: The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. When § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. See Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (the Board is required to consider all issues raised either by the claimant or reasonably by the record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Schafrath, 1 Vet. App. at 593 (applicable provisions of law and regulation should be addressed when they are made "potentially applicable through the assertions and issues raised in the record"). See also Burton v. Shinseki, 25 Vet. App. 1 (2011) (section 4.59 to be considered for disabilities other than solely arthritis). The Court has distinguished a claim for an increased rating from that of a claim arising from disagreement with the initial rating assigned after service connection was established. Fenderson, 12 Vet. App. at 126-27. The Court has also held that where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). III. Lumbar Spine Rating The RO has rated the service-connected lumbar spine disability 10 percent disabling prior to March 22, 2011, and 20 percent from that date under Diagnostic Code 5242. 38 C.F.R. § 4.71a (2013). Spine disabilities are rated under the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Ratings based on duration of incapacitating episodes of intervertebral disc syndrome over the past 12 months are available. A 60 percent schedular rating for intervertebral disc syndrome is warranted where incapacitating episodes have a total duration of at least 6 weeks during the last 12 months. A 40 percent schedular rating for intervertebral disc syndrome is warranted where incapacitating episodes have a total duration of at least 4 weeks, but less than 6 weeks, during the last 12 months. A 20 percent schedular rating for intervertebral disc syndrome is warranted where incapacitating episodes have a total duration of at least 2 weeks, but less than 4 weeks, during the last 12 months. Note (1): 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. Id. None of the VA compensation examination reports reflect intervertebral disc syndrome resulting in incapacitating episodes. However, the Veteran did report to his representative, in January 2011, that he had periods of incapacitation exceeding six weeks in the twelve month period during his final year of employment (2008). Regardless of this report, there is no indication that a physician prescribed bed rest during that time. Thus, the Board does not find the statement credible or that the Veteran is using a specific term in "incapacitating episodes" without knowledge of its actual definition. Therefore a higher rating is not warranted for either rating period on appeal under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The schedular rating provides that unless the spine is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, it is rated as follows: 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 Unfavorable ankylosis of the entire spine................................................100 Unfavorable ankylosis of the entire thoracolumbar spine..............................50 Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine................................................................................40 Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. ....................................................................30 Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.......................................20 Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height...............................................................................10 Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 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 cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): 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. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. According to a September 2005 VA compensation examination report, the Veteran reported back pain when lifting more than 20 pounds or standing for more than one hour. He reported difficulty performing activities that required reaching, bending, or pulling. Range of motion was to 100 degrees of flexion, limited by pain; to 40 degrees of extension, painless; to 25 degrees of right flexion, with pain at 25 degrees; to 25 degrees of left flexion, with no pain; and, rotation was to 40 degrees in each direction with no pain. X-rays showed slight lumbar scoliosis and possible sacro-iliitis. The diagnosis was degenerative disc disease with herniation at L5-S1. In a November 2006 notice of disagreement, the Veteran reported that he was not able to work more than a few hours per week (presumably due to back pain). During a February 2007 VA compensation examination, the Veteran reported more frequent and severe back pains. He could accomplish daily activities and walk 15 to 30 minutes. He worked as a retail clerk but was unable to lift heavy objects. Extended standing caused pain to radiate to the right leg. Thoracolumbar spine flexion was to 90 degrees, limited by pain beyond 60 degrees. Extension was to 15 degrees, limited by pain. Lateral bending was to 20 degrees in each direction, limited by pain, and rotations were to 30 degrees in each direction, limited by pain. Straight leg raising test was positive at 60 degrees. There had been no flare-up of pain. In a June 2007 substantive appeal, the Veteran noted that his back disorder caused daily pain that limited standing, bending, and sitting, and that he could work no more than two consecutive days at a time. According to a March 2011 VA compensation examination report, the thoracolumbar spine had 40 degrees of flexion with pain, 10 degrees of extension with pain, 20 degrees of lateral bending in each direction with pain, and 30 degrees of rotation in each direction with pain. Pain emanated from the low back and radiated down the right leg. The pain was constant, daily, and of significant intensity. Additional functional impairment existed, as manifested by inability to walk more than 10 minutes, run, stand longer than 20 minutes, sit longer than 20 minutes, or lift more than 5 pounds. Lower extremity strength was full and no sensory deficit was elicited. X-rays showed marked degenerative disc disease at L5-S1. During the March 2011 VA compensation examination, the Veteran reported that he last worked in 2008 because he was unable to perform manual tasks. The physician concluded that the service-connected back disability, in combination with a service-connected foot disability, would preclude continued working in sales, his prior occupation, but it was unclear whether these disabilities would also preclude any work of a sedentary nature. The above facts indicate that lumbar spine degenerative disc disease has been manifested throughout the appeal period by limited range of motion in flexion that has not been less than to 40 degrees. Comparing this manifestation with the criteria of the rating schedule, the criteria for a 20 percent schedular rating are more nearly approximated. While a 20 percent schedular rating has already been granted for the latter portion of the appeal period, there is ample basis for granting a 20 percent rating for the earlier portion of the appeal period. This basis is three-fold. First, in September 2005, the Veteran reported that he could not lift over 20 pounds and, second, in February 2007, he reported that he could work only one or two consecutive days at a time. These two facts connote additional functional impairment. Third, the September 2005 and February 2007 examination reports reflect limited thoracolumbar spine motion in all planes. While the criteria of a 20 percent rating depend only on limited forward flexion, Note (2) explains that "For VA compensation purposes" normal thoracolumbar spine extension is zero to 30 degrees, right and left lateral flexion are to 30 degrees, and right and left rotation are zero to 30 degrees. None of these ranges of motion were met in either September 2005 or February 2007. The Board therefore concludes additional disability due to limited lifting, limited working, and painful motion in all planes exists, such that, following the DeLuca tenets, the criteria of a 20 percent rating are more nearly approximated for the entire appeal period. The criteria for a schedular rating greater than 20 percent are not met at any time because disability that more nearly approximates 30 degrees or less of forward flexion of the thoracolumbar spine or favorable ankylosis of the thoracolumbar spine is not shown at any time, even considering the DeLuca tenets. After considering the evidence of record, the Board finds that the evidence favors a schedular 20 percent rating prior to March 22, 2011. Therefore, a 20 percent schedular rating is granted for the earlier portion of the appeal period. However, the Board finds that the preponderance of it is against the claim for a schedular rating greater than 20 percent for the thoracolumbar spine for any portion of the appeal period. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). IV. Separate Rating for Neurologic Abnormality As set forth at Note (1) above, the rater must separately evaluate any associated objective neurologic abnormalities under an appropriate diagnostic code. The Board construes Note 1 to confer upon the Board jurisdiction over such neurologic ratings by virtue of the appealed spine disability rating. Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe incomplete paralysis. Absent organic changes, the maximum rating will be moderate, unless sciatic nerve involvement is shown. 38 C.F.R. § 4.123 (2013). Neuralgia, cranial or peripheral, is usually characterized by a dull and intermittent pain, of typical distribution, so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. 38 C.F.R. § 4.124 (2013). For disease of the peripheral nerves, the term "incomplete paralysis" when used with peripheral nerve injuries indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation 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. Diagnostic Code 8520 is analogous to lower extremity radiating pain because the anatomical area of the neurologic deficits more nearly approximates the level of disability produced by sciatica when considering functional impairment, anatomical location, and symptomatology. 38 C.F.R. § 4.20 (2013). Under Diagnostic Code 8520, a 10 percent evaluation is warranted for mild incomplete paralysis of the sciatic nerve. A 20 percent evaluation requires moderate incomplete paralysis. A 40 percent evaluation requires moderately severe incomplete paralysis. A 60 percent evaluation requires severe incomplete paralysis with marked muscular atrophy. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2013). The evidence for right lower extremity radiating pain includes two compensation examination reports that mention right leg pains. No motor weakness or sensory deficit has been reported and no left lower extremity pain has been reported. Because persistent right leg pain is shown, resolving reasonable doubt in favor of the Veteran, the Board finds that right lower extremity radiating pain exists as a neurologic abnormality of his service-connected lumbar spine degenerative disc disease. This is wholly sensory and productive of no more than mild incomplete paralysis. The criteria for a separate 10 percent schedular rating for right lower extremity radiating pain are therefore more nearly approximated for the entire appeal period. In this case, the evidence does not contain factual findings that demonstrate distinct time periods in which the service-connected disabilities exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal. The assignment of staged ratings is therefore unnecessary. Hart, 21 Vet. App. at 510. V. Extraschedular Consideration The above determinations are based upon consideration of applicable rating provisions. It should also be pointed out that there is no showing that the Veteran's lumbar spine disability with radiating pain to the right lower extremity has reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2013). The symptoms of his disability (limitation of motion, painful motion, radiating pain, etc.) have been accurately reflected by the schedular criteria. Without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). ORDER For the period prior to March 22, 2011, an increased, 20 percent, initial rating for lumbar degenerative disc disease is granted, subject to the laws and regulations governing payment of monetary benefits. For the entire appeal period, an initial rating greater than 20 percent for lumbar degenerative disc disease is denied. For the entire appeal period, a separate 10 percent initial rating for right lower extremity radiating pain is granted, subject to the laws and regulations governing payment of monetary benefits. REMAND The Veteran seeks TDIU. There is no formal TDIU application in the claims file. On remand, the RO/AMC should therefore send the Veteran and his representative a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. TDIU may be assigned where the schedular rating is less than total when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2013). Service connection is in effect for lumbar spine degenerative disc disease, rated 20 percent, right lower extremity radiating pain, rated 10 percent, and right hallux valgus, rated 10 percent. In this case, the service-connected disabilities do not appear to meet the schedular TDIU guidelines; however, further guidance is set forth at 38 C.F.R. § 4.16(b). Section 4.16 (b) sets forth that TDIU may be assigned on an extraschedular basis for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). Also, with respect to this extraschedular rating under § 4.16(b), the Board cannot grant such an extraschedular rating in the first instance. In March 2011, the Veteran reported that he last worked in 2008. He reported that this job consisted of only 15 hours of work per week and that he could no longer perform his duties. In March 2011, a VA compensation examiner stated the following: It is my opinion that the veteran's degenerative disc disease of the lumbar spine and painful synovitis right foot would make it difficult for him to obtain and maintain gainful employment in sales, which was his most prior job, because of the duties of standing, lifting, and walking; but it is unclear as to why he could not obtain and maintain gainful employment in a sedentary job such as deskwork. In June 2013, the Veteran's representative found the above opinion to be inadequate and requested clarification. It is unclear to the Board whether the Veteran can secure and follow a substantially gainful occupation. The Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran can perform work that would produce sufficient income to be other than marginal income. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). In Friscia, the Court stressed that VA must supplement the record by obtaining an examination which includes an opinion on what effect the service-connected disability has on his ability to work. Friscia, 7 Vet. App. at 297. A VA examiner should examine the Veteran and then furnish a full description of the effects of the service-connected disabilities upon the Veteran's employment. This description may include an opinion on such questions as whether service-connected disabilities preclude standing for extended periods, lifting more than a certain weight, sitting for eight hours a day, or performing other specific tasks. Moore v. Nicholson 21 Vet. App. 211, 219 (2007). The examiner should address whether it is at least as likely as not that the Veteran is unable to secure and follow substantially gainful employment solely as a result of all service-connected disabilities. Advancing age and nonservice-connected disabilities are not for consideration. The examination report must include a rationale for any opinion expressed. More recently, in Geib v. Shinseki, 733 F.3d 1350, 1354 (2013) the United States Court of Appeals for the Federal Circuit held that VA's duty to assist does not require obtaining a single medical opinion regarding the combined effects of all service-connected disabilities; however, that decision is predicated on a case where VA had obtained separate medical opinions addressing the impact on employability resulting from independent disabilities, both the RO and the Board had presented adequate reasons and bases for their conclusions, and the appellant had not claimed clear error in the Board determination. In the Veteran's case, an opinion addressing the "combined effects" of all service-connected disabilities would be probative to the claim, notwithstanding the Geib holding. Accordingly, this issue is REMANDED for the following actions: 1. The RO/AMC should send a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, to the Veteran and his representative. 2. The RO/AMC should develop the TDIU claim as necessary. This includes offering an appropriate examination to determine whether service-connected disabilities preclude securing and following a substantially gainful occupation. The examiner is asked to elicit a history of all service-connected symptoms from the Veteran, examine him, and then address whether it is at least as likely as not (50 percent or greater possibility) that service-connected disabilities preclude securing and following a substantially gainful occupation. The Veteran's educational and vocational history must be considered. Advancing age and nonservice-connected disabilities are not for consideration. The examiner is asked to provide a rationale for any opinion offered. 3. If it is determined that service-connected disabilities preclude the Veteran from securing and following a substantially gainful occupation, the RO/AMC should submit the case to the Director, Compensation and Pension Service, for extraschedular consideration in accordance with 38 C.F.R. § 4.16(b). 4. Following the above, the RO/AMC should review all the relevant evidence and re-adjudicate the TDIU claim. If the desired benefit is not granted, an appropriate supplemental statement of the case (SSOC) should be issued. The Veteran and his representative should be afforded an opportunity to respond to the SSOC before the claims file is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). Failure to report for a scheduled VA examination without good cause may have adverse consequences on this claim. 38 C.F.R. § 3.655 (2013). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs