Citation Nr: 1600375 Decision Date: 01/06/16 Archive Date: 01/21/16 DOCKET NO. 09-25 147 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a schedular disability rating in excess of 20 percent from February 21, 2008, until May 14, 2013, and a schedular rating in excess of 40 percent since May 14, 2013, for a low back disability. 2. Entitlement to an extraschedular rating for a low back disability. 3. Entitlement to a compensable disability rating for a left fifth toe disability since August 9, 2009. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Alexander Panio, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1981 to May 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In December 2012 the Board remanded this case for further development. The case has returned to the Board for appellate review. Although the issue of entitlement to TDIU was not certified for appeal, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. The Veteran has raised the matter of entitlement to TDIU during the pendency of the appeal. Thus, the issue is properly before the Board. As further development is required however, the issue, along with the issue of a compensable disability rating for a left fifth toe disability, is addressed in the REMAND portion of the decision below. Furthermore, in conformance with the Court's recent holding in Johnson v. McDonald, 762 F.3d 1362, 1365 (Fed. Cir. 2014), extraschedular consideration can only be contemplated following the development of all remanded rating issues under appeal, as action taken on remand could potentially impact the issue of referral for consideration of entitlement to an extraschedular rating. Thus, the issue of an extraschedular rating is recharacterized as noted on the title page and is likewise REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. From February 21, 2008, until May 14, 2013, even considering the Veteran's pain and corresponding functional impairment, his low back disability was not productive of limitation of forward flexion of the thoracolumbar spine to 30 degrees or less. 2. At no point during the appeal period, even considering the Veteran's pain and corresponding functional impairment, has his low back disability manifested lumbar ankylosis, or Intervertebral Disc Syndrome (IVDS) resulting in incapacitating episodes having a total duration of at least 6 weeks in a 12-month period. CONCLUSIONS OF LAW 1. For the period from February 21, 2008 until May 14, 2013, the criteria for a schedular disability rating in excess of 20 percent for a low back disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5237, 5242 (2015). 2. For the period since May 14, 2013, the criteria for a schedular disability rating in excess of 40 percent for a low back disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5237, 5242, 5243 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for benefits. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper notice should be provided prior to the initial unfavorable decision and must inform the claimant of any information and 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Claims for an increased rating require notice that, in order to substantiate the claim, information and evidence must be provided demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. The claimant should also be notified that should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes and an effective date will be assigned. The notice must also provide examples of the types of medical and lay evidence that the claimant may submit that are relevant to establishing entitlement to increased compensation. 38 U.S.C.A. § 5103(a); See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds, Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). An April 2008 letter, sent prior to the initial unfavorable rating decision, provided the Veteran with appropriate notification. VA also has a duty to assist the Veteran in the development of a claim. This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and other pertinent treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's STRs, VA treatment records, and private treatment records have been obtained and considered. The Veteran has not identified any outstanding records that have not been obtained. In December 2012 the Board remanded this claim for additional development. There has been substantial compliance with the Board's remand directives, insofar as VA solicited information from the Veteran regarding any outstanding treatment records, obtained further treatment records from the Veteran's private doctors, obtained available VA treatment records and provided the Veteran with a new spine examination in May 2013. D'Aries v. Peake, 22 Vet. App. 97 (2008); Stegall v. West, 11 Vet. App. 268 (1998). The Veteran also underwent VA examinations in May 2008 and August 2009 which, along with the May 2013 examination, involved review of the claims file, in-person interviews, and physical assessments, including range of motion testing. The Board finds these examinations to be adequate to evaluate the impact of the Veteran's disability on his earning capacity as the effects of the conditions have been measured and described in sufficient detail so that the Board's evaluation will be fully informed. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Moreover, the Veteran does not report that his condition has worsened since his May 2013 VA examination and thus a remand is not required solely due to the passage of time. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). The Board thus finds that all relevant facts have been properly developed, and all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claims. II. Law The Veteran has been service-connected for a low back disability and contends that the severity of his condition warrants a higher disability rating. Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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 required for that rating. 38 C.F.R. § 4.7. While the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14; Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). However, VA is required to provide separate evaluations for separate manifestations of the same disability that are not duplicative or overlapping. Esteban v. Brown, 6 Vet. App. 259, 261 (1994). The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, 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. A 30 percent disability rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned for 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. 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 entire spine. 38 C.F.R. § 4.71a. The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note (2) provides that, 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. See also Plate V, 38 C.F.R. § 4.71a. Note (3) provides that, 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) provides that the rater is to round each range of motion measurement to the nearest five degrees. Note (5) provides that, 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. 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). 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). 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. See id. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and degree of his recurrent symptoms. 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). 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). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may 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). III. Analysis Statements from the Veteran and his friends and family indicate that the Veteran experiences significant pain and reductions to flexibility and mobility when attempting physical labor, such as taking down Christmas decorations or lifting objects. The Veteran has reported that any physical labor reduces his range of motion and renders him unable to do anything but walk. He wears a back brace and has reported that standing for more than 15 minutes causes intense pain. He also reports pain and stiffness waking up in the morning. May 2007 private treatment records show the Veteran denied joint pain, stiffness, muscle aches, difficulty walking, or weakness of muscles or joints. Objective examination showed a normal back, some tenderness and a normal range of motion. In September 2007 the Veteran reported low back pain. No back abnormalities were found. In January 2008 the Veteran reported low back pain for the previous 2 months, sometimes radiating to the leg. The Veteran denied weakness or numbness and was assessed with low back pain with no hyperemia, tenderness, or warmth on palpation. Mild spasms were noted and straight leg raising test was negative. January 2008 chiropractic records show the Veteran complained of nearly constant, chronic, stiff, tight, low back pain, worse over the last 2-3 months without a specific date of onset. He denied previous treatment for his back pain other than over the counter medication. He denied any paresthesias of the lower extremity or radiating pain. He described his pain as 4/10. He denied similar aggravation of back tightness although he has had episodes of back spasms. His pain seemed to lessen since after recovering from flu-like symptoms. The chiropractor noted normal stance, gait, and stride and non-antalgic standing posture. Range of motion was noted to be full without guarding although stiffness was noted at end motions. No guarding or support on extension or recovery was observed. The Veteran's back was mildly tender to palpation of the midline at L4-S1. No spasms or obvious asymmetry of back or pelvis were observed. Forward bending was normal. Straight leg raise, Valsalva's, Figure-of-Four and Piriformis tests were all negative although the Figure-of-Four test was somewhat restricted bilaterally without complaint. The Veteran was assessed with aggravation of chronic nonspecific mechanical lower back pain in the presence of degenerative disc at L5-S1 and lesser at L4-5, L-spine spondylosis lower levels, mildly moderate and segmental dysfunctions at L3-4 and L5-S1. In May 2008 the Veteran underwent a VA examination where he complained of constant low back pain with flare-ups of shooting pain due to activity (stooping over, prolonged walking, standing, and sitting in one position such as driving). He reported the flare-ups could last 2 days and limited his time on his feet. The Veteran walked unaided but reported using a brace. He reported being capable of attending to the activities of daily living and able to walk 25 minutes before developing significant back pain. He denied any unsteadiness or falls and reported being employed as a minister who spends significant time on his feet. The examiner recorded forward lumbar flexion to 45 degrees and extension to 10 degrees, bilateral lumbar flexion and rotation were observed to 20 degrees. The examiner noted pain throughout all ranges of motion with more pain at the extremes. No additional pain or limitation of motion was noted upon repetition. The Veteran reported tenderness in the low back on palpation. No spasm or guarding was noted and the Veteran had a preserved spinal contour and normal gait. Sensation was intact to light touch, vibration, and sharp/dull discrimination bilaterally in the lower extremities. No atrophy was noted and strength was 5/5 bilaterally in the lower extremities. Deep tendon reflexes were normal bilaterally. No pathological reflexes were noted and Lasegue's sign was normal. July 2008 private treatment records show the Veteran denied joint pain, stiffness, muscle aches, difficulty walking, and weakness. The treatment provider noted the Veteran had no back tenderness, abnormalities or lordosis, and had a normal range of motion. In November 2008 the Veteran reported low and middle back pain, sometimes radiating to the leg with no weakness or numbness. The Veteran underwent another examination in August 2009 where he complained of variable pain in the lumbosacral area and a constant dull sharp tearing type pain localized to the hips. The Veteran denied bladder, bowel or lower extremity sensory symptoms. He reported that bending and lifting more than 30-40 pounds caused flare-ups; having to call in sick for one day five months prior to the examination after lifting a heavy weight; and, mild to moderate flare-ups precipitated by movement, bending, lifting, prolonged certain positions, walking, standing, sitting and bad weather. Pain was lessened by rest, physical therapy, stretching, heating pad, avoiding heavy exertion, analgesics and use of a back brace. The Veteran reported no additional limitation of motion or functional impairment during flare-ups. The Veteran walked unaided, but used a back brace. He reported being able to walk up to two miles per day. The Veteran reported his pain had mild to moderate effects on his occupation or daily activities including not lifting things at work and being unable to stand for a long time due to pain. The Veteran was able to attend to his own activities of daily living, able to drive, to have gainful work full time and to do recreational activity including going to church, the mall and movies. The Veteran reported doing his own grocery shopping, cooking, cleaning, laundry and some yard work. Flexion was from 30 to 90 degrees with pain from 20-30 degrees. Extension was from 0 to 10 degrees with pain throughout. Bilateral lateral flexion was from 0 to 20 degrees with pain from 10 to 20 degrees and bilateral lateral rotation was from 0 to 20 degrees with pain from 0 to 10 degrees. There was no change in motion upon repeated and resisted testing of the spine and no additional limitation by fatigue, incoordination, weakness, lack of endurance was noted. The examiner noted abnormal motion and limited efforts from the Veteran as well as disproportionate symptoms. The examiner noted a paraspinal muscle spasm in the lumbar area and tenderness on palpation to the paraspinal areas. Spinal contour and gait were normal with no dyspnea or dysphagia. Findings on guarding were ambiguous. The Veteran had normal sensation, strength and reflexes in his lower extremities. Regarding a Lasegue's sign test, the Veteran could not raise his legs in supine position but his seated results were unremarkable. No IVDS was found. The Veteran was assessed with recurrent lumbar strain and mild degenerative joint disease of the lumbosacral spine. Noted effects of the condition were fatigue, weakness, lack of endurance and incoordination. April 2012 treatment records show the Veteran reporting low back pain radiating to the left leg since January. He also reported being retired. His treatment provider noted his back was very rigid and could not bend at all with severe paravertebral muscular spasm. A normal gait was noted. He was assessed with chronic low back pain with radiculopathy. In May 2013 the Veteran underwent another VA examination where he reported daily, constant back pain and stated that over the past two years his back pain had worsened and that he had started injection therapy for pain control. He was noted to have lumbar flexion to 20 degrees with pain at 5 degrees, extension to 5 degrees with pain throughout, bilateral lateral flexion to 0 degrees and bilateral rotation to 5 degrees. The Veteran was unable to perform repetitive tests due to pain/stiffness. Reported manifestations of functional loss included less movement than normal, pain on movement, disturbance of locomotion, and interference with sitting, standing and/or weight-bearing. The Veteran was noted to have moderate thoracolumbar paravertebral tenderness, an abnormal gait, full strength with no atrophy, hypoactive knee and ankle reflexes, normal sensation negative straight leg test bilaterally, and no radiculopathy. The examiner noted the Veteran had IVDS with incapacitating episodes at least 1 week but less than 2 weeks in the previous year. Lordosis was normal. The Veteran reported quitting his job the day before due to his back pain. In October 2013 VA treatment records the Veteran stated his pain was 4/10 with no associated numbness or weakness of limbs. After examination of the evidence of record, the Board does not find that the Veteran's low back disability warrants a rating in excess of what has previously been granted, either before or after May 14, 2013. Prior to May 14, 2013, the Veteran's most restricted range of measured forward flexion was at least 30 degrees at his August 2009 VA examination. While the report is somewhat ambiguous as to whether the Veteran was capable of further flexion, the examiner noted that the Veteran was giving a limited effort and manifested disproportionate symptoms. April 2012 treatment records show the Veteran being unable to bend at all, however this appears to be an anomaly or further suggestion of limited effort as the Veteran was capable of lumbar flexion to 20 degrees at his next VA examination in May 2013. The Veteran's strength, sensation and reflexes were also normal during this period. The Veteran's back disability during this period was productive of pain, restricted movement and decreased endurance, limiting his time on his feet. His back disability was not productive of swelling, deformity, or atrophy that affected stability, standing, and weight-bearing. The Veteran's gait was normal and he was able to ambulate, to perform his job duties except for heavy lifting, and to fully attend to the other activities of daily living. There is no indication of IVDS prior to May 14, 2013, and no finding of ankylosis at any point during the appeal period. Thus even considering the Deluca factors, the Veteran's lower back disability did not warrant a rating in excess of 20 percent prior to May 2013. At his May 2013 examination, the Veteran's forward lumbar flexion had diminished to 20 degrees. He was also noted to have IVDS productive of incapacitating episodes amounting to less than 2 weeks during the course of the previous year. His disability continued to be productive of restricted movement, pain, reduced endurance and interference standing, and affected gait and locomotion. However, even in light of Deluca factors, the symptoms of the Veteran's back disability, including pain and functional impairment, do not amount to a disability level commensurate with ankylosis of the entire spine, or incapacitating episodes having a total duration of 6 weeks in a year. The Veteran's statements indicate consistent mild to moderate pain and difficulty with standing long periods of time, but he is able to ambulate and his flare-ups appear to be dependent on physical activities such as bending and lifting. Finally, the Board acknowledges that the evaluation of any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, is part and parcel of the Veteran's increased rating claim. In this regard, the record does not demonstrate bowel or bladder impairment that is attributable to the Veteran's lumbar spine disability. It is acknowledged that the Veteran has occasionally complained of radiating pain and was assessed with radiculopathy in April 2012; however, VA examinations and x-ray findings before and after April 2012 did not detect radiculopathy and while the Veteran may occasionally experience pain in the left lower extremity, that pain has been attributed to other disabilities, including the Veteran's service-connected varicose veins of the left leg. The Board also notes that in 2007 the Veteran was diagnosed with a hernia of the left leg; service connection for this disability is not in effect. Accordingly, the assignment of a separate rating is not warranted. In summary, the currently assigned ratings are appropriate. A schedular disability rating in excess of 20 percent for a low back disability from February 21, 2008 to May 14, 2013 is denied, and a in excess of 40 percent thereafter is denied. The Board has considered the benefit of the doubt doctrine, but it is not for application as the preponderance of the evidence weighs against the Veteran's claim. ORDER For the period from February 21, 2008 until May 14, 2013, a schedular disability rating in excess of 20 percent for a low back disability is denied. For the period since May 14, 2013, a schedular disability rating in excess of 40 percent for a low back disability is denied. (CONTINUED ON NEXT PAGE) REMAND Regarding the Veteran's toe claim, the 2013 VA examiner assessed hallux valgus, metatarsalgia and pes planus. The examiner did not opine however on whether these conditions are manifestations of, or resultant from the Veteran's left fifth toe disability. Clarification in this regard is required. The Veteran has raised the issue of entitlement to a TDIU. Also, in 2013, the VA examiners indicated that the Veteran's lower back disability and left toe disability affected his employment. See Rice, 22 Vet. App. 447. As the Veteran appears to be currently unemployed, the Board finds that the Veteran should be afforded an opportunity to comment on his prior employment, education, training, and the impact of his service-connected disabilities on his employability. Additionally, any development affecting the remanded increased rating claims may have an impact on the complete picture of the Veteran's service-connected disabilities and their effect on his employability as it pertains to extraschedular consideration. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Thus, the issue of entitlement to an extraschedular rating for the Veteran's low back disability will also be remanded. 38 C.F.R. § 3.321(b). Accordingly, the case is REMANDED for the following action: 1. Send the Veteran and his representative a letter addressing VA's duty to notify with respect to his TDIU claim, to include a VA Form 21-8940. The letter must give the Veteran the opportunity to address how his service-connected disabilities impact his ability to work. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his the nature, extent and severity of the symptoms from his service-connected disabilities and the impact of those disabilities on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Then, schedule the Veteran for an examination by an appropriate VA medical professional to determine whether his hallux valgus, metatarsalgia and pes planus were: a) caused by his left fifth toe disability, or b) aggravated beyond their normal course of progression by his left fifth toe disability. 4. Then, after reviewing any newly submitted information concerning his employability and bearing in mind any limitations noted in the Veteran's previous VA examinations, the examiner should evaluate whether the Veteran's service-connected disability picture impairs his ability to meet the demands of a job, either sedentary or physical. This should include evaluation of the limitations and restrictions imposed by his service-connected impairment on such work activities as interacting with customers/coworkers and using technology, plus such routine work activities as sitting, standing, walking, lifting, carrying, and pushing and pulling for up to eight hours per day. All indicated tests should be accomplished, and findings reported in detail. The examiner must take into consideration the Veteran's level of education, training, and previous work experience. The entire claims file, including any newly obtained treatment records, must be reviewed by the examiner and all necessary tests should be conducted. The examiner should report all findings and provide an explanation for all elements of his/her opinion. 5. Thereafter, take any additional action deemed appropriate, to include referral to the Director of Compensation Service for extraschedular consideration (3.321(b) and 4.16(b)) for the Veteran's lower back disability, left fifth toe disability, and TDIU. 6. Finally, readjudicate the issues on appeal. If any of the benefits sought on appeal remain denied, furnish the Veteran and his representative with a Supplemental Statement of the Case and afford them the opportunity to respond before the file is returned 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs