Citation Nr: 1614080 Decision Date: 04/06/16 Archive Date: 04/25/16 DOCKET NO. 04-40 388 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an increased disability evaluation for the Veteran's lumbosacral spine spondylolisthesis and lumbar spine degenerative joint disease with muscle strain and sciatica, currently evaluated as 40 percent disabling. 2. Entitlement to a total rating for compensation purposes based on individual unemployability due to the service-connected disabilities (TDIU). 3. Entitlement to an effective date prior to September 30, 2002, for the award of service connection for tinea versicolor. 4. Entitlement to an initial disability evaluation in excess of 10 percent for the Veteran's tinea versicolor. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Shauna M. Watkins, Counsel INTRODUCTION The Veteran had active service from February 1973 to September 1983. The TDIU and lumbar spine claims come before the Board of Veterans' Appeals (Board) on appeal from a February 2003 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which, in pertinent part, denied an increased disability evaluation for the Veteran's lumbosacral spine spondylolisthesis and lumbar spine degenerative joint disease with muscle strain and sciatica and denied a TDIU. The Veteran was notified of this decision in March 2003. The Veteran filed a Notice of Disagreement (NOD) in March 2004, appealing these denials. The RO issued a Statement of the Case (SOC) in September 2004. In November 2004, the Veteran filed his Substantive Appeal. Thus, the Veteran perfected a timely appeal of these issues. In November 2007, the Board remanded the Veteran's TDIU and IR lumbar spine claims to the RO via the Appeals Management Center (AMC), in Washington, DC, for further development. The tinea versicolor claims come before the Board on appeal from a March 2009 rating decision of the AMC, which granted service connection for tinea versicolor and assigned a 10 percent evaluation for that disability, effective September 30, 2002. In September 2009, the Veteran submitted a NOD with the effective date and initial evaluation assigned for the award of service connection for tinea versicolor. In March 2010, the Board remanded all of these appeals to the RO via the AMC in Washington, DC, for further development. The RO then issued a SOC on the tinea versicolor claims in May 2010. In June 2010, the Veteran filed his Substantive Appeal. Thus, the Veteran perfected a timely appeal of these issues. The Board notes that additional medical evidence was submitted after the August 2015 SSOC, and no waiver from the Veteran was received. However, these records do not contain any medical evidence of any kind pertaining to the Veteran's tinea versicolor, the issues addressed in the decision below. As such, the records are in no way pertinent or relevant to the claims adjudicated. Further, the TDIU and lumbar spine claims are being remanded to the Agency of Original Jurisdiction (AOJ) for further development. Thus, upon remand, the AOJ will have the opportunity to review the new evidence and readjudicate the TDIU and lumbar spine claims. A waiver for this evidence is not necessary, nor is the initial consideration of this evidence by the RO. 38 C.F.R. §§ 20.800, 20.1304 (2015). Finally, the Board observes that a June 2013 NOD was filed by the Veteran regarding 12 issues adjudicated in the April 2013 rating decision. To date, the AOJ has not issued a SOC on these 12 issues. However, according to VACOLS, the AOJ is actively working these appeals and preparing medical opinions before the issuance of the SOC. Thus, the Board will not take jurisdiction over these issues at this time. These appeals were processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record, in addition to the Veteran's Virtual VA paperless claims file. The issues of entitlement to an increased disability evaluation for the Veteran's lumbosacral spine spondylolisthesis and lumbar spine degenerative joint disease with muscle strain and sciatica, currently evaluated as 40 percent disabling, and entitlement to a TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran separated from the active military service in September 1983; he did not raise a claim of entitlement to service connection for tinea versicolor within one year of discharge. 2. On September 30, 2002, the Veteran first raised a claim of entitlement to service connection for tinea versicolor. 3. In a March 2009 rating decision, service connection for tinea versicolor was granted, effective September 30, 2002. 4. No communication or medical record prior to September 30, 2002, may be interpreted as an informal claim of entitlement to service connection for tinea versicolor. 5. Throughout the appeal period, the tinea versicolor has been manifested by less than 5 percent of the entire body and exposed areas affected, and has not required intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to September 30, 2002, for the award of service connection for tinea versicolor have not been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2015). 2. The criteria for an initial disability rating in excess of 10 percent for tinea versicolor are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Codes (DCs) 7806, 7813 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). I. VA's Duties to Notify and Assist Under applicable law, 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 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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. This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). This appeal arises from the Veteran's disagreement with the effective date and initial disability rating assigned following the grant of service connection for tinea versicolor. As such, pertinent regulation provides that VA has no further obligation to provide notice under 38 U.S.C.A. § 5103 on this downstream element of the claim. See 38 C.F.R. § 3.159(b)(3)(1). In so providing, the courts have held that once service connection is granted, the claim is substantiated, further notice as to the "downstream" elements concerning the initial rating and effective date is not required, and any defect in the notice is not prejudicial. See Dingess v. Nicholson, 19 Vet. App. 473, 490-491 (2006); see also Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Thus, because the section 5103 notice provided in January 2008 before the grant of service connection for tinea versicolor was legally sufficient, VA's duty to notify in this case is satisfied. See also Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, supra. VA also has a duty to assist the Veteran in the development of the claims. This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues has been obtained. His STRs, personnel records, and post-service VA and private treatment records have been obtained. The claims file does not present evidence that the Veteran is currently receiving disability benefits from the Social Security Administration (SSA) for the disability currently on appeal. Therefore, the Board does not need to make an attempt to obtain these records. The Board does not have notice of any additional relevant evidence that is available but has not been obtained. Additionally, the Veteran has been afforded VA examinations, and the reports of those evaluations contain all findings needed to properly evaluate his disability. 38 C.F.R. § 4.2 (2015). The Board also finds no credible lay or medical evidence demonstrating or alleging an increased severity of the disability since the most recent VA examination in May 2015. A VA medical opinion is unnecessary for the earlier effective date claim. Thus, there is no duty to provide further medical examination on the claims on appeal. See VAOPGCPREC 11-95 (Apr. 7, 1995). The Board is also satisfied as to substantial compliance with its March 2010 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). This included adjudicating his claims in the May 2010 SOC. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claims. Therefore, no further assistance to the Veteran with the development of evidence is required. II. Earlier Effective Date Claim A March 2009 rating decision granted entitlement to service connection for tinea versicolor, retroactively effective from September 30, 2002. The Veteran contends that he is entitled to an earlier effective date for this award of service connection. Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. §§ 3.400, 3.400(b)(2). The effective date of an evaluation and award of compensation on an original claim for compensation will be the day following separation from active duty service or the date entitlement arose if claim is received within one year after separation from service; otherwise, date of receipt of claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2). In the present case, the Veteran separated from the active service in September 1983. It is not in dispute that he failed to submit a claim of entitlement to service connection for tinea versicolor within one year from his discharge. The Veteran asserts that, while he did not file a service connection claim, he should receive an effective date back to his active military service since he had in-service complaints of tinea versicolor. See June 2010 Veteran statement. Unfortunately, in-service complaints alone are not sufficient to warrant an earlier effective date. Instead, the Veteran must have filed a service connection claim within one year of his military discharge in order to warrant, assignment of an effective date back to the day following discharge, and the Veteran did not. It is observed that the Veteran initially raised a claim of entitlement to service connection for tinea versicolor on September 30, 2002. Thus, that date serves as the date of claim. Although the evidence of record does not reveal an exact date upon which the entitlement arose, the Board notes that such information is not required in order to conclude that the September 30, 2002, date selected by the RO is the earliest possible effective date. The reason for this is that if the entitlement arose prior to September 30, 2002, then the date of claim would be the later of the two, and hence the correct effective date as provided by 38 C.F.R. § 3.400(b)(2). Any evidence showing that the entitlement occurred after September 30, 2002, would not entitle the Veteran to an earlier effective date. The Board has also considered whether any evidence of record prior to September 30, 2002, could serve as an informal claim in order to entitle the Veteran to an earlier effective date. In this regard, any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155 (2015). After reviewing the record, the Board concludes that there are no testimonial documents submitted between prior to September 30, 2002, indicating an intent to file a claim of entitlement to service connection for tinea versicolor. It is further noted that, under 38 C.F.R. § 3.157 (2015), a report of examination or hospitalization will be accepted as an informal claim for benefits. In this regard, the Board notes that the Veteran asserts that he was receiving VA treatment for tinea versicolor prior to September 2002, and thus should be entitled to an earlier effective date. See September 2010 Veteran statement. However, the provisions of 38 C.F.R. § 3.157 only apply once a formal claim for compensation or pension has been allowed or compensation disallowed because the disability is not compensable. Here, the Veteran's September 30, 2002, claim was not pre-dated by an adjudication of the type cited in 38 C.F.R. § 3.157(b), and, as such, that regulation does not afford a basis for finding that his claim, be it formal or informal, of entitlement to service connection for Veteran was filed earlier than September 30, 2002. 38 C.F.R. § 3.157; Crawford v. Brown, 5 Vet. App. 33 (1993). The Board appreciates the Veteran's lay statements, in which he maintains he is entitled to an effective date earlier than September 30, 2002, for his service-connected tinea versicolor. However, as there are no earlier filed claims for service connection for tinea versicolor of record, the earliest effective date possible for the Veteran's claim for service connection for tinea versicolor is September 30, 2002. In sum, the presently assigned effective date of September 30, 2002, is appropriate and there is no basis for an award of service connection for tinea versicolor prior to that date. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). III. Initial Rating Claim Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity in civil occupations. Separate DCs identify the various disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4 (2015). Where a veteran appeals the initial rating assigned for a disability at the time that service connection for that disability is granted, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous . . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. The Board notes that during the course of the appeal, in October 2008, the regulations pertaining to the evaluation of the skin were amended, effective October 23, 2008. It is further observed that the regulatory changes only apply to applications received by VA on or after October 23, 2008, or if the Veteran requests review under the clarified criteria. See 73 Fed. Reg. 54708 (Sept. 23, 2008). As neither situation applies in this case, the Board finds the 2008 changes to be inapplicable. Additionally, regulatory changes were made in 2012, but these changes involve only a correction to the applicability date of the 2008 regulations, and do not involve any substantive changes. Thus, they are not pertinent to the appeal, as the 2008 regulations do not apply to the Veteran. Therefore, the criteria that became effective on August 30, 2002, are the only ones that apply in this case. See 67 Fed. Reg. 49,590-49,599 (July 31, 2002). The Veteran is in receipt of a 10 percent initial disability rating under 38 C.F.R. § 4.118, DCs 7806, 7813 for his tinea versicolor. He seeks a higher initial disability rating. DC 7813 provides that dermatophysosis is to be rated as disfigurement of the head, face, or neck (DC 7800), scars (DCs 7801, 7802, 7803, 7804, or 7805), or dermatitis (DC 7806), depending upon the predominant disability. 38 C.F.R. § 4.118. Here, the AOJ found that DC 7806 was the most appropriate DC for the Veteran's skin disorder. Under DC 7806, dermatitis or eczema that involves at least 5 percent, but less than 20 percent, of the entire body or exposed areas are affected, or requires intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the past 12-month period, warrants a 10 percent disability rating. Dermatitis or eczema that involves 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period, is rated 30 percent disabling. 38 C.F.R. § 4.118. In applying the above law to the facts of the case, the Board finds that the Veteran is not entitled to a higher disability rating for his tinea versicolor. Here, there is no evidence of tinea versicolor involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period, to warrant a disability rating in excess of 10 percent. 38 C.F.R. § 4.118, DCs 7806, 7813. Specifically, at a January 2009 VA skin examination, the VA examiner, following a review of the claims file, noted that the Veteran was treated in 2005 and 2006 with a lotion that he was asked to place on his skin, allow it dry, and then wash it off. Subsequent to that, he was asked to use antibacterial soap. At the examination, the Veteran reported that his tinea versicolor was located on his upper arm, back, and buttocks. Following a physical examination of the Veteran, the examiner reported that the Veteran did not have an active rash on his upper arms, back, or buttocks. Thus, the examiner was unable to calculate the total body surface involved. However, the examiner stated that Veteran's reported history was consistent with tinea versicolor or pityriasis versicolor. The examiner did note that there was some depigmentation of the skin on the Veteran's back, upper arm, and buttocks that was consistent with tinea versicolor. The Veteran was afforded another VA skin examination in May 2015. The VA examiner determined that the Veteran's skin conditions did not cause scarring or disfigurement of the head, face, or neck. The examiner noted that the Veteran had been treated with oral or topical medications in the past 12 months for his skin disorder. Specifically, the Veteran was treated with selenium sulfide, a topical medication, for less than 6 weeks of the past 12 months. The Veteran did not have any other treatments or procedures, to include corticosteroids or other immunosuppressive drugs, for his skin disorder in the past 12 months. The examiner determined that the tinea versicolor was less than 5 percent of the Veteran's total body area and less than percent of his exposed areas (hands, face, and neck). The examiner described the tinea versicolor as "[p]atches that are pink and darker than the skin around them. Spots that do not tan the way the rest of the [V]eteran's skin does." The VA and private treatment records in the claims file do not provide evidence contrary to that obtained at the VA examinations. In applying the above law to the facts of the case, the Board finds that the Veteran is not entitled to a higher disability rating for his tinea versicolor. Here, there is no evidence of tinea versicolor involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period, to warrant a disability rating in excess of 10 percent. 38 C.F.R. § 4.118, DCs 7806, 7813. The Board has considered the application of the remaining DCs under the current version of the regulation in an effort to determine whether a higher rating may be warranted for the Veteran's tinea versicolor, but finds none are raised by the medical evidence. DC 7800 is not applicable because the Veteran does not have a skin disorder of the head, face, or neck with visible or palpable tissue loss, or; with two or three characteristics of disfigurement. DC 7801 and DC 7805 are not applicable because the affected skin area does not exceed 72 square inches (465 sq. cm.). DCs 7802, 7803, and 7804 are not applicable because the Veteran is already in receipt of the maximum rating of 10 percent under those codes. 38 C.F.R. § 4.118. Furthermore, the Veteran's symptoms do not appear to have changed significantly during this initial rating period so as to warrant a staged rating. Fenderson, 12 Vet. App. at 126. The Board notes that in adjudicating a claim, the competence and credibility of the Veteran must be considered. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences. For example, he is competent to report that he experiences certain symptoms, such as discoloration, and he is credible in this regard. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran's competent and credible belief that his disability is worse than the assigned rating, however, is outweighed by the competent and credible medical examinations that evaluated the true extent of impairment based on objective data coupled with the lay complaints. The VA examiners have the training and expertise necessary to administer the appropriate tests for a determination on the type and degree of the impairment associated with the Veteran's complaints. For these reasons, greater evidentiary weight is placed on the physical examination findings. Also, as stated above, the rating criteria are specific in indicating that some of the criteria must be objectively demonstrated. In sum, the preponderance of the evidence is against the assignment of an initial disability rating in excess of 10 percent for the service-connected tinea versicolor at any time during the appeal period. Thus, the claim is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see Gilbert, 1 Vet. App. at 53. The above determination is based on application of provisions of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2015). However, the regulations also provide for exceptional cases involving compensation. Pursuant to 38 C.F.R. § 3.321(b)(1) (2015), the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of a veteran's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). If the criteria reasonably describe the claimant's disability level and symptomatology, then a veteran's disability picture is contemplated by the rating schedule. The assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). Here, because the schedular rating for the Veteran's tinea versicolor fully address his symptoms, which include mainly discoloration and topical treatments, referral to the VA Under Secretary for Benefits or the Director of Compensation and Pension Service for consideration of an extraschedular evaluation is not warranted. A comparison between the level of severity and symptomatology of the tinea versicolor with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Specifically, the Veteran reports discoloration and topical treatments. The regulations address discoloration and topical treatments, and the Veteran's discoloration and topical treatments were considered in assigning him his current disability rating. However, even with consideration of his pain, his symptoms were not severe enough to warrant a higher disability rating. Thus, the Veteran's symptoms of discoloration and topical treatments were considered in the regulations. There is no credible evidence that the Veteran's service-connected disability causes impairment that is not contemplated by the schedular rating criteria or that renders impractical the application of the regular schedular standards. See Thun, 22 Vet. App. at 111. Accordingly, referral of this case for consideration of an extraschedular rating is not warranted. Id.; see also Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996). Further, the Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, in this case, after applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. Finally, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for TDIU is considered part and parcel of an increased rating claim when the issue of unemployability is raised by the record. In this case, the TDIU issue is on appeal and addressed in the remand below. Therefore, consideration of a TDIU is not warranted at this time. ORDER The claim of entitlement to an effective date prior to September 30, 2002, for the award of service connection for tinea versicolor is denied. The claim of entitlement to an initial disability evaluation in excess of 10 percent for the Veteran's tinea versicolor is denied. REMAND In March 2010, the Board remanded the TDIU and lumbar spine claims for adjudication of the issue of whether new and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for lumbar spine intervertebral disc degeneration. Following the adjudication of this intertwined issue in the March 2016 rating decision, the AOJ did not readjudicate the TDIU and increased rating lumbar spine claims in a SSOC as specifically requested by the Board in its remand. Thus, to date, the TDIU and lumbar spine issues have not been readjudicated by the AOJ following the development completed upon remand. The Board finds that a remand is required in order to comply with the Board's prior March 2010 remand directives. See Stegall, 11 Vet. App at 268 (holding that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Accordingly, the case is REMANDED for the following action: Readjudicate the Veteran's claims of entitlement to an increased disability evaluation for the lumbosacral spine spondylolisthesis and lumbar spine degenerative joint disease with muscle strain and sciatica, currently evaluated as 40 percent disabling, and entitlement to a TDIU. If the claims remain denied, issue to the Veteran and his representative a SSOC. Afford them the appropriate period of time within which to respond thereto. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 2014). ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs