Citation Nr: 21031728 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 14-08 561 DATE: May 24, 2021 ORDER Resolving all reasonable doubt in the Veteran's favor, entitlement to an initial 40 percent disability rating, but no higher, for service-connected myofascial syndrome of the lumbosacral spine (hereafter referred to as a "low back disability") is granted. REMAND Entitlement to total disability based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran's service-connected low back disability more closely approximates limitation of forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. CONCLUSION OF LAW The criteria for entitlement to an initial 40 percent disability, but no higher, for service-connected low back disability have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 52355242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1996 to November 1999 and from March 2003 to March 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A Board hearing was conducted in conjunction with the RO in St. Petersburg, Florida, and the satellite office in West Palm Beach, Florida. A transcript of this hearing is contained within the electronic claims file. This claim most recently was remanded by the Board in a March 2020 decision. VA was instructed to assist the Veteran in obtaining identified private treatment records, obtain outstanding VA physical therapy records, and obtain a retrospective medical opinion regarding the Veteran's range of motion during a May 2018 VA examination. The physical therapy notes and retrospective opinion were obtained in March and June of 2020, respectively. VA made two attempts to assist the Veteran in obtaining private treatment records from Drs. M.T. and A.D by sending her the necessary forms to authorize VA to obtain those records. May 4, 2020, and April 1, 2020, Subsequent Development Letters. The Veteran responded to neither request. Thus, the Board finds that VA has expended all the effort that is required to assist the Veteran in obtaining these records, as the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); cf. McKinney v. McDonald, 28 Vet. App. 15, 35 (2016) (holding that "reasonable efforts" to obtain private treatment records consists of "an initial request for the records and, if the records are not received, at least one followup request."). Therefore, the Board finds that VA has complied with all prior remand directives and now will proceed with adjudication. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). In other words, 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 is necessary. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When assessing the severity of musculoskeletal disabilities that are, at least partly, rated on the basis of limitation of motion, VA also must consider the extent that a veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when a veteran's symptoms are most prevalent ("flare-ups") due to the extent of his or her pain (and painful motion), weakness, premature or excess fatigability, and incoordination, assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 20407 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. DCs 5235 through 5242 pertain to various disease and injuries of the spine. Invertebral disc syndrome based on incapacitating episodes (IVDS) (DC 5243), however, is rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a at Note (6). Under 38 C.F.R. § 4.71a, DCs 52355242, a 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted for limitation of forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 30 percent rating pertains only to the cervical spine, so it will not be discussed. A 20 percent rating is assigned when there is forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine not greater than 120 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. The thoracolumbar spine encompasses forward flexion of 090 degrees; extension of 030 degrees; and bilateral lateral flexion and bilateral rotation of 030 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. All record ranges of motion are to be rounded to the nearest five degrees. Id. at Notes (2), (4), Plate V. 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. Id. at Note (5). The United States Court of Appeals for Veterans Claims (CAVC) recently has held that, while in the past the focus of applying the factors contained in 38 C.F.R. §§ 4.40 and 4.45 were limited to that of range of motion, nothing "suggests that those factors should not apply in the context of ankylosis, particularly as ankylosis is, in essence, a complete limitation of motion." Chavis v. McDonough, No. 18-2928, 2021 U.S. App. Vet. Claims LEXIS 660, at *19 (April 16, 2021). Thus, the "application of §§ 4.40 and 4.45 permits consideration under the General Rating Formula of an evaluation based on ankylosis if a claimant's functional loss is consistent with that contemplated by ankylosisin other words, if it is the functional equivalent of ankylosis." Id. at *20. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are rated separately under an appropriate DC. Id. at Note (1). Under DC 5243, incapacitating episodes of IVDS having a total duration of at least six weeks during the past twelve months warrants a 60 percent rating. Incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months yields a 40 percent rating. Incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past twelve months warrants a 20 percent rating. Incapacitating episodes having a total duration of at least one week but less than two weeks during the past twelve months is rated as 10 percent disabling. For purposes of evaluations under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. If IVDS is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. Id. at Notes (1) and (2). The Board notes that, during the pendency of this appeal, VA has amended the rating criteria for the musculoskeletal system contained in 38 C.F.R. § 4.71a. These changes take effect February 7, 2021, and cannot be applied prior to that date. Beginning that date, however, the Board will apply the rating criteria that is more favorable to the Veteran: either the old or the new criteria. 85 Fed. Reg. 76,453, 76,469 (Nov. 30, 2020). The rating criteria for the spine also did not undergo any substantive changes. Rather, the rating schedule merely reflects updated DCs. DC 5242 now is assigned for degenerative arthritis and degenerative disc disease other than IVDS. DC 5243IVDSnow will be assigned only where there is disc herniation with compression and/or irritation of the adjacent nerve root; DC 5242 should be assigned for all other disc diagnoses. DC 5244 is created for complete, traumatic paralysis; if it does not cause loss of use of both hands or feet, then it is incomplete paralysis, and the residuals thereof should be rated under the appropriate DCs for the peripheral nerves. Paraplegia is to be rated under DC 5110. 85 Fed. Reg. 76,453, 76,463, 76,469 (Nov. 30, 2020). A February 2012 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran's complaints and medical history. The report indicated that Veteran suffers from lumbosacral myofascial syndrome. The Veteran did not report flare-ups. Range of motion was recorded as follows: forward flexion: 090 degrees or greater; extension: 020 degrees; bilateral lateral flexion: 030 degrees or greater; right lateral rotation: 030 degrees or greater; left lateral rotation: 025 degrees. Repetitive use testing was performed without additional loss of range of motion. The Veteran had diffuse tenderness to palpation of the entire lower thoracic/lumbar/sacral spine midline and bilateral paraspinal, as well as bilateral SI joints. There was no evidence of guarding of the thoracolumbar spine or muscle spasm. Muscle strength was normal except for bilateral ankle dorsiflexion (4/5), right great toe extension (4/5), and left great tow extension (3/5). There was no muscle atrophy, radiculopathy, ankylosis, or IVDS. VA medical center (VAMC) records from June 2013 contain x-rays of the Veteran's spine. They reveal mild spondylosis in the superior endplates of L3 and L4. A September 2013 entry reveals that the Veteran has intermittent pain in the lumbar spine that is 9/10 and worse with prolonged sitting and standing; she feels better with topical heat and lying down. Sometimes she experiences leg cramps. A November 2013 MRI revealed disc desiccation of L34 with preserved disc height. Mild bilateral neural foraminal stenosis at L35, and L5S1 due to facet arthropathy without exiting nerve root impingement. A February 2014 VAMC entry notes that the Veteran has chronic lower back pain with radicular pain. In her March 2014 VA Form 9, the Veteran stated that she is in constant pain since she injured her back. She alleges very limited range of motion and severe restriction in her activities of daily living. The Veteran experiences pain with basic activities such as bathing, dressing, and grocery shopping. VAMC entries from July 2015 reveal that the Veteran's back pain does not radiate and that she has a steady gait; although, pain can reach as high as 10/10. During this month, the Veteran began receiving Toradol injections for the pain. Notes from August 2015 show chronic axial mechanical low back pain with an MRI that reportedly indicated signs of minor lower lumbar spondylosis with no disc herniation, thecal sac stenosis, or nerve root impingement and no clinical signs of neurological impairment or dural tension. Symptoms were constant mechanical low back pain made worse with bending lifting, sitting, standing, with only very rare sensory symptoms extending to the right lateral thigh and occasionally below the knee and no symptoms of focal motor weakness. There is no associated alteration of the Veteran's usual pattern of bowel or bladder sphincter function, saddle pattern sensory dysfunction, recent history of trauma or constitutional symptoms. The physical therapy notes obtained upon remand are from July 2016. These notes indicate that the Veteran engaged in a couple sessions of physical therapy without success in reducing her overall pain to her low back. The Veteran testified that she is unable to perform daily activities twothree days out of a week, is bed bound and unable to work, and daily takes pain medication. April 5, 2018, Hearing Transcript (Tr.) at 3. The Veteran also endorses having muscle spasms and an inability to stretch or bend. Id. at 5. A May 2018 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran's complaints and medical history. The report indicated that Veteran suffers from lumbosacral myofascial syndrome. The Veteran reported flare-ups described as an inability to do anything (therapy, clean, bend forward, work, etc.). These flare-ups occur threefour times per month and prohibit the Veteran from getting out of bed. Range of motion was recorded as follows: forward flexion: 080 degrees; extension: 020 degrees; bilateral lateral flexion: 030 degrees; bilateral lateral rotation: 010 degrees. Pain was noted for flexion, extension, and bilateral lateral rotation. Repetitive use testing was performed without additional loss of range of motion. The Veteran was not examined immediately after repeated use over time, and the examiner did not provide an opinion as to the possible loss of additional range of motion; the same applied to flare-ups. There was no evidence of guarding or muscle spasm. Muscle strength was normal. There was no muscle atrophy, radiculopathy, ankylosis, or IVDS. The examiner noted constant use of a brace. There was pain noted on passive range of motion or in non-weight-bearing movement. A November 2019 Report of Consultation and Examination by Dr. M.T. is of record. With respect to her back disability, Dr. M.T. stated that the Veteran suffers from progressive low back pain, which is now constant in varying degrees and intensifies with standing, sitting, and walking. Range of motion testing was performed and revealed the following: forward flexion: 020 degrees; extension: 010 degrees; bilateral lateral flexion: 015 degrees; bilateral lateral rotation: 010 degrees. There is fixation of 50 percent or more at the lumbosacral joint with moderate hypertonicity of the superficial and deep musculature at that level. Dr. M.T. also noted that the Veteran was experiencing sciatica of the bilateral lower extremities. For each extremity, she noted partial paralysis of the sciatic nerve and started that it is at least as likely as not that these conditions are related to the Veteran's service-connected low back disability. In June 2020, VA received the addendum opinion requested on remand. The examinerDr. J.M.reviewed the medical records and opined that, after repeated use over time and during a flare-up, the Veteran would experience limited range of motion as the following: forward flexion: 070 degrees; extension: 020 degrees; bilateral lateral flexion: 030 degrees; bilateral lateral rotation: 010 degrees. Dr. J.M. also commented on Dr. M.T.'s prior examination report, noting "numerous errors in that note." Dr. J.M. stated that Dr. M.T.'s documentation and evaluation of sciatica of the bilateral lower extremities "is completely inconsistent with the multiple notes from various providers in the medical records," and that he did not "see any radiological findings that could cause this type of radicular pain." A November 2020 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran's complaints and medical history. The report indicated that Veteran suffers from bilateral sciatica (although no EMG testing was performed). In a corresponding medical opinion, however, the examiner stated that the Veteran's sciatica is less likely than not related to her low back disability. In opining as such, the examiner stated: Upon review of medical records 06/03/2003, 05/22/2013, 11/19/2013, 02/25/2014, 11/30/2019 and physical exam, it is less likely than not that the Veteran's left sciatica is proximately due to the myofascial syndrome of the lumbar spine. An MRI of the lumbar spine does not show any compression of the sciatic nerves in 2013. There is no medical evidence that she has compression of the sciatic nerves from lumbar spine pathology. A February 2021 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran's complaints and medical history. The report indicated that Veteran suffers from lumbosacral myofascial syndrome. The Veteran reported flare-ups described as occurring any time, severe in nature, lasting threefour weeks, and precipitated by holding the same position bending, sitting, standing, claiming stairs, walking, and lifting. Flare-ups are alleviated by rest, pain medications, and hot/cold compresses. No range of motion was tested due to the Veteran's inability to sit in a chair for longer than ten minutes and because she stated that she could not perform range of motion testing that day. While the Veteran did have localized tenderness of the thoracolumbar spine, it did not result in an abnormal gait or spinal contour; there was no muscle spasm or guarding. Additional factors contributing to the Veteran's disability were interference with sitting and standing. Muscle strength was 3/5 for all movements tested. There was no muscle atrophy, radiculopathy, ankylosis, IVDS, or other neurological abnormality. The examiner noted that the Veteran could not stand or sit for more than fifteen minutes due to pain. Evaluating the evidence of record, the Board will resolve all reasonable doubt in the Veteran's favor and find that her low back disability more closely approximates a 40 percent disability rating for the entire period on appeal. Conducting a straightforward application of the rating criteria to the Veteran's disability shows that she would not have been eligible for an increase until November 30, 2019 (the date of Dr. M.T.'s evaluation showing that she had flexion limited to 20 degrees). Nevertheless, when evaluating this Veteran's unique disability picture, the Board will explain why a 40 percent rating is applicable for the entire period on appeal. The VA examination from February 2012 revealed that the Veteran's back disability resulted in weakened muscle strength in the lower extremities. From 20132014, the Veteran reported exceptionally high levels of pain and severe restriction in completing her activities of daily living. Records from 2015 and 2016 reveal that the Veteran endured constant mechanical low back pain made worse with bending, lifting, sitting, and standing. Physical therapy did little to aid the Veteran, and she even began receiving Tramadol steroid injections for the pain. In 2018, the Veteran testified that she sometimes can be bed ridden due to the pain from her flare-ups and this information was again captured in the May 2018 VA examination report. Dr. M.T.'s examination reveals that the Veteran objectively met the criteria for a 40 percent rating due to limited range of flexion. When the Board considers the factors articulated in 38 C.F.R. §§ 4.40 and 4.45, it finds that this Veteran has a unique disability picture that extends beyond her current 10 percent rating. The Veteran's described and documented functional loss far exceeds that contemplated by a 10 percent disability rating. Thus, although the objective medical evidence does consistently demonstrate the criteria for the 40 percent rating has been met for the entire period on appeal, the Board nevertheless finds that her specific disability picture more closely approximates the limitations that would be experienced by the Veteran with frequent flare-ups or exacerbations for which there will not always be objective documentation. See DeLuca, 8 Vet. App. at 20407; 38 C.F.R. §§ 4.40, 4.45, 4.59. As noted above, the Board now must consider whether a veteran's functional impairment is the equivalent of ankylosis. Chavis, 2021 U.S. App. Vet. Claims LEXIS 660, at *20. Due to the Board's award herein, the Veteran currently receives a 40 percent evaluation, which contemplates favorable ankylosis. Furthermore, she is not service connected for any condition of the cervical spine. Thus, the only remaining question becomes whether the Veteran's functional loss is the equivalent to that of unfavorable ankylosis of the entire thoracolumbar spine. The Board finds that it is not. VA has defined unfavorable ankylosis as a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. 38 C.F.R. § 4.71a, DCs 52355242 at Note (5). While there is evidence that the Veteran experiences some periods of immobility due to pain during flare-ups, February 19, 2021, VA Examination Report; March Tr. at 3, the Board does not find that these periods of immobility are the functional equivalent of the Veteran's thoracolumbar spine being in a fixed position with the additional, debilitating symptoms that are required to accompany unfavorable ankylosis as contemplated by the rating criteria. Indeed, it is emphasized that the Veteran's now-current 40 percent rating already contemplates favorable ankylosis, and the Board finds that her symptoms more closely would approximate that condition. As such, a rating in excess of 40 percent is not warranted. See Chavis, 2021 U.S. App. Vet. Claims LEXIS 660, at *20; 38 C.F.R. §§ 4.40, 4.45, 4.71a, DCs 52355242. Lastly, the Board must address the conflicting evidence regarding the possibility of neurological impairments and its relation to the Veteran's service-connected low back disability. See 38 C.F.R. § 4.71a, DC 52355242 at Note (1). The claims file contains conflicting medical evidence regarding whether the Veteran carries a diagnosis of radiculopathy. Some VAMC records confirm radicular pain, while others disclaim radiating pain down the Veteran's lower extremities. All VA back examinations confirm that the Veteran does not have radiculopathy, but Dr. M.T. diagnosed bilateral sciatica. Dr. J.M., however, heavily criticized Dr. M.T.'s findings, stating that they did not comport with the other medical evidence of record. Presuming VA wanted to resolve this conflict, it obtained a peripheral nerve examination in November 2020. While no EMG testing was performed, the examiner concluded that bilateral sciatica was present. Resolving all reasonable doubt in the Veteran's favor, the Board finds that she has a diagnosis of bilateral radiculopathy of the sciatic nerve. Despite that finding, separate evaluations for the radiculopathy are not warranted. There are two conflicting opinions regarding whether the radiculopathy is related to the Veteran's specific, service-connected low back disability. Dr. M.T. blanketly states that the conditions are caused by the Veteran's service-connected condition. The examiner who conducted the peripheral nerve examination, however, reached the opposite conclusion. The latter stated that MRI findings from 2013 did not show compression of the sciatic nerve and that there otherwise is no medical evidence to support that the radiculopathy is caused by her myofascial syndrome. Recall above that Dr. J.M. also seriously questioned Dr. M.T.'s findings as he believed they did not comport with the rest of the medical records. In evaluating the opinions of record, the Board affords more probative value to that of the November 2020 VA examiner. Dr. M.T. does nothing more than state the Veteran's sciatica is related to her service-connected condition. On the other hand, the VA examiner provided a supporting rationale as to why the myofascial syndrome would not have caused radiculopathy. Again, Dr. J.M., a medical professional who was not even asked to opine on the findings of Dr. M.T., felt compelled to comment on the "inconsisten[cy]" of Dr. M.T.'s findings when compared to "the multiple notes from various providers in the medical records." Thus, the Board finds that separate evaluations for the Veteran's bilateral sciatica are not warranted. See 38 C.F.R. § 4.71a, DC 52355242 at Note (1). REASONS FOR REMAND If further evidence, clarification of the evidence, correction of a procedural defect, or any other action is essential for a proper appellate decision, a Veterans Law Judge shall remand the case to the agency of original jurisdiction, specifying the action to be undertaken. 38 C.F.R. § 20.904(a). The Board previously adjudicated on the merits the low back claim in November 2018, but that decision was vacated based on an August 2019 Joint Motion for Remand. When the Board wrote that decision, however, it previously failed to note that it properly had jurisdiction for a claim of TDIU. A claim for TDIU, either expressly raised by the veteran or reasonably raised by the record in association with an increased rating, involves an attempt to obtain an appropriate rating for a disability and is part and parcel of the claim for the increased rating on appeal. Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). Once entitlement to a TDIU is at issue as part of a claim for an increased rating, a claimant need not appeal a denial by the agency of original jurisdiction (AOJ) for the issue to remain in appellate status. Payne v. Wilkie, 31 Vet. App. 373, 38889 (2019); Harper v. Wilkie, 30 Vet. App. 356, 35961 (2018). During the pendency of this appeal, the Veteran filed a claim for TDIU. February 1, 2016, VA Form 21-8940. Although she alleged TDIU due to her service-connected feet, migraines, and major depression, the Veteran testified at her hearing that her low back disability limits her activities of daily living and renders her unable to go to work. While the AOJ denied entitlement to TDIU in a March 2016 rating decision, the Veteran was under no obligation to appeal that determination to keep the issue of entitlement to TDIU alive during the pendency of this appeal. See Payne, 31 Vet. App. at 38889. Even if the Veteran limited her application for TDIU solely to the issues identified on her application, her later testimony at her hearing raises the issue of entitlement to TDIU due to her back. Thus, in either scenario, the Board has adjudicated over entitlement to TDIU. When the Veteran first applied for TDIU, she indicated on her application that she currently was working. That fact alone served as the basis for her denial. March 11, 2016, Rating Decision. Thus, the Board finds that remand is appropriate so that the AOJ can readjudicate the issue of entitlement to TDIU, considering the Board's award of the 40 percent rating herein, and to obtain an updated VA Form 21-8940, as the Veteran's working status may have changed. See 38 C.F.R. § 20.904(a). The matter is REMANDED for the following action: 1. Send to the Veteran a complete application for TDIU so that an updated employment history may be obtained. 2. Conduct any other development deemed necessary and then readjudicate the Veteran's claim. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or the CAVC must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. (SIGNATURE ON NEXT PAGE) JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Trevor T. Bernard, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.