Citation Nr: 1450120 Decision Date: 11/12/14 Archive Date: 11/19/14 DOCKET NO. 06-31 300 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 20 percent for degenerative joint disease of the lumbar spine. 2. Entitlement to compensation benefits, pursuant to the provisions of 38 U.S.C.A. § 1151, for left shoulder disability, as a result of treatment at a VA medical facility. 3. Entitlement to service connection for temporal lobe seizure disorder (claimed as residuals of a head injury). 4. Entitlement to service connection for a left shoulder disability, claimed as secondary to service-connected right and left knee disabilities. 5. Entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b). REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran had active military service from February 1972 to June 1972; he had additional service with the Army National Guard. This appeal to the Board of Veterans' Appeals (Board) arose from February 2005, February 2007 and August 2007 rating decisions issued by the RO in Providence, Rhode Island. In the February 2005 rating decision, the RO denied, inter alia, a higher rating for service-connected lumbar spine disability. The Veteran filed a notice of disagreement in February 2006, and the RO issued a statement of the case in July 2006. He filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals ) in September 2006. In the February 2007 rating decision, the Providence RO denied service connection for temporal lobe seizure disorder. The Veteran filed a notice of disagreement in May 2007, and the RO issued a statement of the case in July 2007. He filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals ) in August 2007. In the August 2007 rating decision, the Providence RO denied, inter alia, entitlement to service connection for a left shoulder disability. The Veteran filed a notice of disagreement in September 2007, and the RO issued a statement of the case in April 2008. He filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) that same month. The record reflects that the Veteran was previously represented by private attorney Robert V. Chisholm , and that he revoked power of attorney in October 2008. In a June 2009 VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative), he appointed the Military Order of the Purple Heart as his representative. The Board has recognized the change in representation. In July 2009, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. In a December 2009 decision, the Board denied a rating in excess of 20 percent for degenerative joint disease of the lumbar spine; a rating in excess of 10 percent for internal derangement of the right knee; a rating in excess of 20 percent for degenerative joint disease of the left knee; and service connection for a sacrum disability. The Board also remanded claims of entitlement to service connection for a left shoulder disability and a temporal lobe seizure disorder to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development. The Veteran appealed the Board's December 2009 denial of the lumbar spine claim to the United States Court of Appeals for Veterans Claims (Court). In June 2011, the Court granted the Joint Motion for Partial Remand filed by representatives for both parties, vacating the Board's December 2009 decision solely as to the denial of an increased rating for degenerative joint disease of the lumbar spine, and remanding the claim to the Board for further proceedings consistent with the Joint Motion. The Joint Motion also directed the Board to discuss whether the evidence of record "is cogent evidence of unemployability sufficient to warrant a discussion of entitlement to TDIU." In May 2012, in consideration of the Joint Motion, the Board expanded the appeal to include the matter of entitlement to a TDIU, and remanded the claims for an increased rating for degenerative joint disease of the lumbar spine and for a TDIU to the RO, via the AMC, for further action, to include additional development of the evidence and for consideration of a TDIU on an extra-schedular basis. After completing the requested development, the RO/AMC continued to deny the claims (as reflected in an October 2013 supplemental SOC (SSOC)) and returned the matters on appeal to the Board for further consideration. Moreover, after completing the requested development as directed in the December 2009 Board remand, the RO/AMC also continued to deny the claims of service connection for a left shoulder disability and a temporal lobe seizure disorder (as reflected in a separate October 2013 SSOC) and also returned these matters on appeal to the Board for further consideration. During the pendency of the appeal, the Veteran's claims file was transferred to the jurisdiction of the RO in St. Petersburg, Florida, which has certified the appeal to the Board. As a final preliminary matter, the Board notes that, in addition to the paper claims file, the Veteran also has electronic Virtual VA and Veterans Benefits Management System (VBMS) paperless claims files. A review of the documents in Virtual VA reveals that, with the exception a February 2014 brief submitted by the Veteran's representative, additional VA treatment records dated to October 2013 and a September 2013 VA examination report all located in Virtual VA, they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The Board's decision addressing the claims for an increased rating for degenerative joint disease of the lumbar spine and for compensation benefits, pursuant to the provisions of 38 U.S.C.A. § 1151, for left shoulder disability, is set forth below. The claims for service connection for temporal lobe seizure and left shoulder disability, as well as for a TDIU, are addressed in the remand following the order; these matters are being remanded to Agency of Original Jurisdiction (AOJ). VA will notify the Veteran when further action, on his part, is required. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim herein decided have been accomplished. 2. At no time pertinent to the Veteran's August 2004 claim for increase has the Veteran's service-connected degenerative joint disease of the lumbar spine been manifested by limitation of forward flexion to 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine; any separately ratable neurological manifestations of low back disability; or disc disease resulting in incapacitating episodes. 3. At all times pertinent to the current claim, the schedular criteria have been adequate to evaluate the low back disability under consideration. 4. The only competent medical opinion relative to the section 1151 claim indicates that the Veteran has additional left shoulder disability, diagnosed as left shoulder strain, which was not a reasonably foreseeable consequence of VA treatment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for degenerative joint disease of the lumbosacral spine are not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Diagnostic Codes (2014). 2. The criteria for compensation benefits, pursuant to the provisions of 38 U.S.C.A. § 1151, for left shoulder strain, as a result of treatment at a VA medical facility, are met. 38 U.S.C.A. §§ 1151, 5107 (West 2002); 38 C.F.R. § 3.361 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2014)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2014). Given the favorable disposition of the claim for compensation benefits, pursuant to the provisions of 38 U.S.C.A. § 1151, for left shoulder disability, as a result of treatment at a VA medical facility, the Board finds that all notification and development actions needed to fairly adjudicate the claim have been accomplished. Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 -23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ) (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In regards to the issue of an increased rating for service-connected low back disability, in an October 2004 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The February 2005 RO rating decision reflects the initial adjudication of the claim after issuance of this letter. Post rating, a December 2012 letter provided the Veteran notice of what information and evidence was needed to substantiate the claim for an increased rating, as well as general information pertaining to VA's assignment of disability ratings and effective dates, and the type of evidence that impacts those determinations, consistent with Dingess/Hartman. After issuance of this letter, and opportunity for the Veteran to respond, the October 2013 SSOC reflects the most recent readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of this notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided. Pertinent medical evidence associated with the claims file consists of VA and private treatment records, and the reports of October 2004, March 2007, October 2008 and August 2010 and January 2013 VA examinations. Also of record and considered in connection with the appeal is the transcript of the Veteran's July 2009 Board hearing, as well as various written statements provided by the Veteran, and by his representative, on his behalf. The Board also finds that no additional AOJ action to further develop the record in connection with any matter herein decided is required. Specifically as regards the Board hearing, it is noted that, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) (2012) requires that any Veterans Law Judge who chairs a hearing fulfill two duties to comply with the VCAA. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant, 23 Vet. App. at 488. Here, during the December 2009 Board hearing, the undersigned Veterans Law Judge adequately explained the claim on appeal and suggested evidence that may support this claim, including evidence that the Veteran might submit that may have been overlooked. The Veteran was also specifically asked questions concerning the severity of his low back disability. The Board accordingly concludes that the notice requirements under Bryant were effectively satisfied. To the extent any such notice may have been inadequate, this was effectively cured both by actual knowledge as evidence by statements and questions of the Veteran's authorized representative during the hearing, as well as by the Board providing such explanation of issues and suggesting submission of evidence in the subsequent remand the Board issued to develop this claim. As noted above, the Board sought further development of the claim for an increased rating for low back disability in May 2012. In May 2012, the Board instructed the RO/AMC to request any additional information concerning medical treatment and obtain updated VA treatment records. Thereafter, the RO/AMC was directed to arrange for the Veteran to undergo VA examination after all the pertinent records were associated with the claims file to determine the current severity of the Veteran's low back disability and any associated neurological abnormalities. A remand by the Board confers upon the veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v West, 11 Vet. App. 268, 271 (1998). As noted above, in December 2012, the RO/AMC sent a letter to the Veteran requesting information concerning medical treatment. Additional VA treatment records were obtained and associated with the Veteran's Virtual VA record. The Veteran was also afforded a VA examination in January 2013. As discussed further below, the Board finds that this examination is sufficient for rating purposes. Accordingly, the Board finds that the RO/AMC have substantially complied with the Board's remand directives. See Dyment v. West¸ 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall, 11 Vet. App. 268 where Board's remand instructions were substantially complied with); see also D'Aries v. Peake, 22 Vet. App. 97, 105-106 (2008) (finding that substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). In summary, the duties imposed by the VCAA have been considered and satisfied. The Veteran has been notified and made aware of the evidence needed to substantiate the claims herein decided, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claims herein decided. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on either claim. Any such error is deemed harmless and does not preclude appellate consideration of the matters herein decided, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Increased Rating Claim for Low Back Disability The Veteran is seeking a rating in excess of 20 percent for degenerative joint disease of the lumbar spine. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on 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 ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart, 21 Vet. App. at 509-10. In this case, the Veteran filed a claim for an increased rating for his service-connected degenerative joint disease of the lumbar spine, rated as 20 percent disabling, in August 2004. The RO continued the 20 percent disability rating under to 38 C.F.R. § 4.71a, Diagnostic Code 5237 for lumbosacral strain under the criteria for rating disabilities of the spine, which are set forth in the General Rating Formula for Diseases and Injuries of the Spine. The General Rating Formula provides for assignment of a rating of 20 percent when forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or when the combined range of motion of the thoracolumbar spine is 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. A 40 percent rating is warranted for disability of the thoracolumbar spine either where forward flexion of the thoracolumbar spine is 30 degrees or less, or where there is favorable ankylosis of the thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. These criteria are applied with and without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235-5243). Normal ranges of motion or the thoracolumbar spine are forward flexion to 90 degrees, and extension, lateral flexion, and rotation to 30 degrees. 38 C.F.R. § 4.71, General Rating Formula, Note 2, and Plate V. Moreover, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2011); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Notably, pain, alone, does not equate with functional loss under 38 C.F.R. §§ 4.40 and 4.45 but may cause functional loss if affecting some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Considering the pertinent evidence in light of the applicable criteria, the Board finds that, at no point pertinent to the August 2004 claim for increase has the Veteran's low back disability warranted a rating higher than the current 20 percent rating assigned. The Veteran was afforded a VA examination in October 2004. The claims file was not available for review, but his VA treatment records were reviewed. The Veteran reported increased back pain radiating into his left buttock. He also complained of paresthesias and a burning sensation in his back and coldness in his right toe. He denied weakness, and bladder and bowel incontinence. The Veteran did indicate problems with self-care and sleeping in that he could not sleep more than four hours. He had a back brace and cane; but he felt they worsened his mobility. On physical examination, there was a slight list of the spine to the right. There was no swelling, muscle spasms, or tenderness. Musculature was within normal limits. Range of motion of the thoracolumbar spine was from 10 degrees on extension to 90 degrees on forward flexion with pain at the endpoints. Lateral extension was to 30 degrees bilaterally with pain at the endpoints; rotation was to 30 degrees bilaterally without pain. The Veteran was unable to do any repetitive testing due to balance issues. Muscle strength was 5/5 and deep tendon reflexes were 2+. Pedal pulses in the right foot were 2+. The Veteran had amputation of the left lower extremity below the knee. The Veteran had full sensation to the right foot. X-rays revealed moderate degenerative changes along the lumbar spine, which was the examiner's diagnosis. A February 2005 MRI of the lumbar spine revealed a small central disc herniation at the L4-5 level with mild facet hypertrophy, but without compromise or narrowing of the central canal. There were mild discogenic changes at the L5-S1 level and mild bilateral facet hypertrophy resulting in moderate left and mild right exit neural foraminal stenosis. The report of a March 2007 VA examination documents the Veteran's complaints of burning pain exacerbated by bending. His pain was chronic and a 7 out of 10, without flares per se. He said he wore a back brace and used a cane. He reported missing approximately three months of work. However, this was observed for both his knees and back disabilities. His low back disability limited his ability to do his usual daily activities, such as exercise. On physical examination, he had an antalgic gait favoring his right side. His spine and hips were in alignment; however, there may have been a slight shift to the right. There was no swelling, muscle spasms, or tenderness. Musculature appeared to be within normal limits. Range of motion was from 10 degrees on extension to 70 degrees on flexion with pain preventing any additional motion. Lateral flexion and rotation were to 30 degrees in each direction. With 5-lb weights, he was able to do 10 repetitions of forward flexion without complaints of pain, fatigue, or weakness. No lack of endurance was noted. Musculoskeletal strength was to 4/5 bilaterally, and deep tendon reflexes were 2+. He had full sensation in his lower right extremity. X-rays revealed moderate degenerative disease at the L5-S1 level. The diagnosis was moderate degenerative disease of the lumbosacral spine. A June 2007 VA MRI revealed concentric disc bulging at the L4-5 and L5-S1 levels with slight bilateral neural foraminal narrowing. The impression was "relatively mild" concentric disc bulging at L4-5 and L5-S1 levels. The Veteran was afforded another VA examination in October 2008. The claims file was reviewed. The examination report reflects the Veteran's complaints of back pain radiating down his right leg. He had no history of known flare-ups or anything requiring hospitalization for incapacitating episodes. On physical examination, range of motion was to 90 degrees on forward flexion with mild discomfort but no pain, weakness, fatigue or lack of endurance with 3 repetitions. Extension was to 10 degrees with pain. (The examiner noted that it was difficult to determine weakness, fatigue, or lack of endurance). Lateral flexion and rotation was to 30 degrees in each direction with no pain, weakness, fatigue or lack of endurance with four repetitions. There was no apparent motor weakness. The examiner recommended that the Veteran seek further neurological and orthopedic evaluation given the recent onset of radiating pain in the lower extremities. At the July 2009 Board hearing, the Veteran testified that he had trouble bending. While he could bend way down at the VA examinations, he paid for it over the next few days. His back, pulled out and he experienced groin pain from this back. He took Motrin and Vicodin twice a day. He reported pins and needles down his back and lower extremities. In December 2009, the Board denied the Veteran's claim for an increased rating. However, the parties Joint Motion found that the case must be returned in light of the October 2008 examiner's comments and recommendation to the Veteran for further neurological evaluation. As such, the Board remanded the case in May 2012 for another VA examination. In the interim, the Veteran was afforded another VA examination in August 2010. The Veteran reported moderate daily flare-ups for one to two hours. Precipitating factors were bending forward, prolonged standing and prolonged walking. Pain was alleviated by lying in bed, repositioning, stretching, relaxing and taking medications. The were no additional limitation of movement with flare-ups. The Veteran denied urinary and fecal incontinence, erectile dysfunction, numbness, paresthesias, leg or foot weakness, falls or unsteadiness, weakness and spasm. The Veteran did report nocturia, fatigue, decreased motion, stiffness and pain. There were no incapacitating episodes. The Veteran did have an orthotic insert and a cane. He was unable to walk more than a few yards. On physical examination, it was observed that he limped with a cane. With the exception of lumbar flattening, there was no other abnormal spine curvature. There was also no ankyloses. There was no spasm, guarding or atrophy, but there were objective findings of pain with motion, tenderness and weakness. Range of motion was zero degrees extension, 40 degrees flexion, 10 degrees left lateral flexion, 20 degrees left lateral rotation, 15 degrees right lateral flexion and 15 degrees right lateral rotation. There was objective evidence of pain on motion. However, there was no objective evidence of pain following repetitive motion or additional limitations following three repetitions. Reflexes were normal. Sensory examination was normal except there was decreased sensation to light touch in the right big toe. Strength was a little reduced. A contemporaneous x-ray showed mild degenerative changes. The Veteran reported that he was forced to retire from his job as a postal worker due to his back and knee. The examiner observed that he was limited to tolerance to prolonged sitting, standing and walking. He was also unable to take clothes out of washer due to pain. An April 2012 private MRI revealed L5-S1 disc herniation, noted to impinge upon S1 nerve roots, resulting in mild to moderate bilateral lateral recess and mild bilateral neural foraminal stenosis, greater on the left; and L4-5 central broad based disc herniation which impinges upon the thecal sac, narrowing the lateral recesses and neural foramina bilateral. An associated annular tear was also present. On remand, the Veteran was afforded another VA examination in January 2013. The claims file was reviewed. The Veteran reported that his back hurt most of the time, worse after sitting in one position or walking 100 feet or half a block. He reported pins and needles in whichever leg he was leaning on as well as occasional pain radiating to either leg. The Veteran reported flare-ups where he became inactive for a few hours. Range of motion testing showed 85 degrees flexion with pain at end point; 5 degrees extension with pain at end point; 20 degrees right and left lateral flexion with pain at end point; and 25 degrees right and left lateral rotation with pain at end point. The Veteran was able to perform repetitive testing. Flexion decreased to 60 degrees, extension was to zero degrees, and left lateral flexion decreased to 15 degrees. Remaining ranges remained unchanged. The examiner observed additional limitation following repetitive testing as well as functional loss and/or impairment due to less movement than normal, pain on movement and interference with sitting, standing and/or weight-bearing. The examiner observed tenderness on palpation as well as guarding and muscle spasm. However, the guarding and/or muscle spasms did not result in an abnormal gait or spinal contour. Strength was normal and there was no muscle atrophy present. Reflexes and sensory examination was also normal. Straight leg raising testing was negative. The examiner clearly found that the Veteran did not have any radicular pain or any other signs or symptoms due to radiculopathy. The examiner found that the Veteran did not have any neurological abnormalities associated with his low back disability. He also determined that the Veteran did not have intervertebral disc syndrome. In this regard, the examiner determined that the Veteran's degenerative disc disease/herniated disc was not a natural progression of the lumbar spine because he had a serious motorcycle accident in 1998 and this was when he stated his back pain began according to February 2002 VA examination report. The impact of that accident, which caused the left lower leg amputation could have caused the herniation. Moreover, the pathogenesis of degenerative joint disease of the lumbar spine is different from the pathogenesis of the degenerative disc disease of the lumbar spine. The joint disease does not lead to herniated disc. The Veteran has asserted in a November 2013 statement that this examination was inadequate because the examiner did not use a goniometer and otherwise generally indicated that the examination was inadequate. Nevertheless, the examination report clearly shows that the examiner performed range of motion testing in all planes for the low back, including repetitive testing. Moreover, the Board is entitled to assume the competence of a VA examiner unless the competence is challenged. Rizzo [v. Shinseki,] 580 F.3d at 1290-91 . The argument that a VA medical examiner's opinion is inadequate is sufficiently close to the argument raised in Rizzo that it should be treated the same." Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011); see also Bastien v. Shinseki, 599 F.3d 1301, 1307 (Fed.Cir. 2010); and Cox v. Nicholson, 20 Vet. App. 563, 569 (2007); Hilkert v. West, 12 Vet. App. 145, 151. Thus, the Board may presume that January 2013 VA examiner accurately reported findings. Moreover, the assertions of the Veteran are not sufficient to overcome the above-mentioned presumption. Accordingly, given that the claims file was reviewed by the VA examiner and the examination report sets forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations, the Board finds the examination to be sufficient for appellate review and of high probative value. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). An April 2013 private opinion documents that the Veteran had reduced range of movement of lumbar extension where head active movement from zero to 15 degrees limited by pain and passive movement zero to 20 degrees again limited by pain. Repetitive testing was unchanged. The examiner also opined that the Veteran's degenerative joint disease of the lumbar spine had progressed over time neuroforaminal stenosis. There was also evidence of impingement on the S1 nerve roots with central disc herniation at L5-S1, more severe on left, and broad based disc herniation at L4-5 narrowing. However, this examiner failed to provide any rationale for his opinion that the Veteran degenerative joint disease had progressed to neuroforaminal stenosis. Historically, service connection was granted for degenerative joint disease of the lumbar spine, as secondary to the Veteran's service-connected left knee disability. The RO assigned an initial 20 percent rating using the criteria for lumbosacral strain. The medical evidence of record shows that the Veteran has also been diagnosed with degenerative disc disease (DDD) or intervertebral disc syndrome (IVDS) of the lumbar spine. However, the Board finds that based on the January 2013 VA examination with opinion, the Veteran's DDD or IVDS are not associated with the Veteran's service-connected low back disability. The Board recognizes that the April 2013 private examiner indicated that the Veteran's DDD was the natural progression of the Veteran's degenerative joint disease, but he offered no rationale for this finding. In contrast, the VA examiner clearly provided a rationale indicating that the pathogenesis for the two different disabilities was different and further observing the serious motorcycle accident that occurred in 1998. The Board notes that, in assessing evidence such as medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens, 11 Vet. App. at 382. Thus, given that the VA examiner provided a detailed rationale for his finding, the Board affords this opinion more probative weight that the April 2013. As such, the specific rating criteria for evaluating IVDS based on incapacitating episodes are not applicable in the instant case. See 38 C.F.R. § 4.71(a), Formula For Rating IVDS Based on Incapacitating Episodes. Nevertheless, the Board observes that where it is not possible to distinguish the effects of a nonservice-connected condition from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the Veteran's service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). In this case, with respect to the remaining functional limitations, it is unclear whether it is possible to distinguish the effects of lumbar spine DDD from DJD. However, even assuming all of the Veteran's low back symptomatology is related to his service-connected lumbar spine DJD, the Board finds that a rating higher than 20 percent is not warranted. In sum, after reviewing the totality of the evidence, the Board finds that there is no medical evidence to warrant a rating in excess of 20 percent under the General Rating Formula. The medical evidence of record has clearly documented that flexion was greater than 30 degrees throughout the course of the appeal. For instance, the October 2004 VA examination indicated that flexion was to 90 degrees with pain at the end point. Moreover, on March 2007 VA examination, flexion was to 70 degrees. Again, in October 2008, flexion was to 90 degrees. Flexion at it most restrictive was documented to be 40 degrees at the August 2010 VA examination, but there was additional limitations following repetitive use. Importantly, at the most recent VA examination, flexion was to 85 degrees and decreased to 60 degrees following repetitions. In sum, the VA examinations all documented that range of motion was greater than 30 degrees, with its most restrictive being documented at 40 degrees. VA and private treatment records are also silent with respect to any such limitations. Moreover, there is not favorable ankylosis of the entire thoracolumbar spine, as is required for a 40 percent rating. The Board has also considered the Veteran's functional impairment due to pain and other factors during the period in question. However, the medical evidence simply does not reflect functional loss due to pain, weakness, excess fatigability, or incoordination-to include with repeated use, or during flare ups-to warrant a higher rating. Although there has been documentation of pain on flexion, there is no indication of any additional functional impairment or loss. See Mitchell. Importantly, although the Veteran's range of motion did decrease upon repetition at the most recent VA examinations, it still did not meet the level warranting a 40 percent rating. In this regard, the Veteran's flexion at its most restrictive following repetition was still found to be 40 degrees at the August 2010 VA examination. Moreover, during the most recent examination, following repetition, flexion only decreased to 60 degrees. As such, the Board finds that the DeLuca factors (noted above) provide no basis for assignment of a rating in excess of 20 percent for the Veteran's low back disability. With respect to neurological abnormalities pursuant to Note (1) of the General Rating Formula for Disease and Injuries of the Spine, there have been no objective finding of neurological abnormalities associated with the Veteran's low back disability to warrant a separate compensable rating. There was no evidence of bowel or bladder dysfunction. During the VA examinations, the Veteran expressly denied any such problems. Although the Veteran has reported pain radiating down his lower extremities, the most recent VA examination clearly found no signs of radiculopathy. Although the August 2010 VA examiner found decreased sensation to light touch in the right big toe, sensory examination at all of the remaining VA examinations was normal with no findings of sensory deficits. As such, the Board finds that this one instance of decreased sensation is not indicative of the Veteran's overall disability picture. In sum, given the consistency of the remaining VA examinations in finding no such deficit, the Board finds that they have more probative value in addressing whether the Veteran has any associated neurological abnormalities. Additionally, as noted in the General Rating Formula, such evaluations contemplates pain (whether or not it radiates). Significantly, the most recent VA examination in January 2013 expressly found no associated neurological abnormalities. Thus, an additional separate compensable rating is not warranted for any other neurological symptoms and the Veteran's current symptoms are adequately contemplated under the assigned 20 percent disability rating. The Board notes that, in reaching the above-noted determinations, the Veteran's own assertions, along with those of his representative, advanced on his behalf have been considered. However, the Board finds that the lay assertions made in support of his claim for higher initial rating are not entitled to more weight than the objective findings rendered by trained medical professionals in evaluating the Veteran's low back disability. See 38 C.F.R. § 3.159 (a)(1); see also Jones v. Brown, 7 Vet. App. 134 (1994). As discussed above, the persuasive evidence indicates that the Veteran's low back disability is consistent with the assigned 20 percent initial rating. Under the circumstances of this case, the Board finds that at no time pertinent to the current claim for higher rating has the Veteran's lumbar spine disability met the criteria for a 40 percent rating. See 38 C.F.R. § 4.7. As the criteria for the next higher, schedular 40 percent, rating are not met, it follows that the criteria for an even higher, schedular rating likewise are not met. The above determinations are s based upon consideration of applicable provisions of VA's rating schedule. Additionally, the Board finds that there is no showing that, at any pertinent point, the Veteran's any of the disabilities under consideration reflected so exceptional or so unusual a disability picture as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(cited in the July 2006 SOC). The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule 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" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. See Thun, 22 Vet. App. at 111. In this case, the Board finds that the schedular criteria are adequate to rate the disability under consideration at all pertinent points. The rating schedule fully contemplates the described low back symptomatology, to include pain and mechanical impairment resulting in limitation of motion, and provides for ratings higher than that assigned based on more significant functional impairment. Notably, there is no evidence or allegation that the schedular criteria are inadequate to rate the lumbar spine disability. The Board further notes that, pursuant to Johnson v. McDonald, 2014-7104, 2014 WL 3562218 (Fed. Cir. Aug. 6, 2014), a Veteran may be awarded an extra-schedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where evaluation of the individual conditions fails to capture all the symptoms associated with service-connected disabilities experienced. As the Board has fully considered all of the Veteran's lumbar spine symptoms in evaluating the service-connected disability, and the evaluation of multiple service-connected disabilities is not presently at issue, the Board finds that the holding of Johnson is inapposite here. Under these circumstances, the Board finds that the requirements for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) are not met, and that referral of the claim for extra-schedular consideration is not required. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For all the foregoing reasons, the Board finds that there is no basis for staged rating of the Veteran's lumbar spine disability, pursuant to Hart (cited above), and the claim for a higher rating must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the assignment of any higher rating, that doctrine is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53-56. III. 38 U.S.C.A. § 1151 Claim for Additional Left Shoulder Disability 38 U.S.C.A. § 1151 affords compensation benefits for a "qualifying additional disability" in the same manner as if the additional disability were service connected. The additional disability qualifies for compensation if the disability is not the result of the Veteran's willful misconduct, and the disability was caused by hospital care, medical or surgical treatment, or examination provided under the laws administered by VA. In order to constitute a "qualifying additional disability," the proximate cause of the additional disability must have been (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the facility furnishing the care, treatment or examination or (2) an event not reasonably foreseeable. 38 U.S.C.A. § 1151 (West 2002); See also 38 C.F.R. § 3.361 (2014). To determine whether a Veteran has an additional disability, VA compares his condition immediately before the beginning of the hospital care, medical or surgical treatment, or examination upon which the claim is based to his condition after such care, treatment, or examination has stopped. VA considers each involved body part separately. See 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in a Veteran's additional disability. Merely showing that he received care, treatment, or examination and that he has an additional disability does not establish cause. See 38 C.F.R. § 3.361(c)(1). Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. See 38 C.F.R. § 3.361(c)(2). Additional disability caused by a Veteran's failure to follow properly-given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. See 38 C.F.R. § 3.361(c)(3). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. See 38 C.F.R. § 3.361(d). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a Veteran's additional disability, it must be shown that the hospital care, medical or surgical treatment, or examination caused his additional disability (as explained in 38 C.F.R. § 3.361(c) ); and VA (i) failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) furnished the hospital care, medical or surgical treatment, or examination without a Veteran's or, in appropriate cases, his representative's informed consent. See 38 U.S.C.A. § 1151 ; 38 C.F.R. § 3.361(d)(1) . Whether the proximate cause of a Veteran's additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable, but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. See 38 C.F.R. § 3.361(d)(2). Considering the pertinent evidence of record in light of the applicable legal authority, and resolving all reasonable doubt in the Veteran's favor, the Board finds that entitlement to compensation benefits, pursuant to the provisions of 38 U.S.C.A. § 1151, for left shoulder disability, as a result of treatment at a VA medical facility, is warranted. By way of background, the Veteran initially injured his shoulder in May 2005 when he fell while walking down the stairs. He sustained a partial tear of the left supraspinatus and underwent private surgery in April 2006 for rotator cuff repair/surgery. The Veteran has asserted that during a routine visit on July 5, 2006 to his Ear, Nose and Throat (ENT) doctor at the VA Medical Center in Providence, he went to sit down on a stool to be examined and fell back landing on his left shoulder, which was the same shoulder he had previously had surgery three months prior. A VA treatment record from that date does document that the Veteran fell backward off an examining chair that was on wheels while in the ENT clinic. He landed on his left shoulder on which he had a recent rotator cuff repair. The pain was severe. A follow up record the next day observed that he was taken to emergency room on a stretcher. The impression was left shoulder injury from fall. Subsequently, an August 2006 VA treatment record gave an impression of left shoulder strain on top of repaired rotator cuff tear. The Veteran underwent a VA examination in September 2013. The claims file was reviewed. The examiner summarized the past medical history and observed that the August 2006 VA treatment records showed an impression of left shoulder strain on top of repaired rotator cuff tear. The examiner opined that it was less likely than not that VA medical treatment caused the additional disability. The examiner rationalized that while the fall in the clinic caused the additional disability, it was not due to carelessness, negligence, lack of proper skill, error in judgment, or similar instances of fault on the part of the VA in furnishing medical care. However, the examiner concluded that the fall from the wheeled stool in the ENT clinic was an event not reasonably foreseeable. Initially, the Board observes that the evidence of record does show that the Veteran incurred an additional left shoulder disability, diagnosed as left shoulder strain, due to the July 2006 fall while receiving treatment at the VA. Nevertheless, the Board must still determine whether this risk was reasonably foreseeable. If so, it must also be determined whether the treatment in question involved any carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA. In the instant matter, it would be reasonable to assume that falling off a wheeled stool during the course of seeking treatment and incurring an additional left shoulder disability was not a reasonably foreseeable consequence of the treatment. Indeed, it is unlikely that such an event would have been indicated as a potential occurrence in any consent forms completed by the Veteran in association with his care. Significantly, the September 2013 VA examiner clearly found that this event was not reasonably foreseeable. As the event in question causing additional disability was not reasonably foreseeable, the criteria for establishing compensation under the provisions of 38 U.S.C.A. § 1151 for additional left shoulder disability (characterized as left shoulder strain) are met. Hence, there is no need to consider the matter of fault on the part of VA. , As a final matter, the Board notes that the issue of entitlement to service connection for a left shoulder disability, claimed on a secondary basis, is addressed in the Remand , below. As the evidence clearly shows that the Veteran had a left shoulder disability prior to the fall in July 2006, this matter is still currently on appeal despite the allowance of the additional left shoulder disability under the provisions of 38 U.S.C.A. § 1151. Notably, however, the matter of assigning a disability rating for this additional left shoulder disability is inextricably intertwined with the remaining service connection issue. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). As such, the assignment of a disability rating may not be able to be accomplished until the remaining left shoulder disability is adjudicated to its finality. ORDER A rating in excess of 20 percent for degenerative joint disease of the lumbar spine is denied. The claim for compensation benefits, pursuant to the provisions of 38 U.S.C.A. § 1151, for left shoulder strain, as a result of treatment at a VA medical facility, is granted. REMAND Unfortunately the Board finds that further AOJ action on the remaining claims on appeal is warranted, even though such will, regrettably, further delay an appellate decision on these matters. As regards the service connection claims on appeal, VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d)(2) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4)(i) (2013). Furthermore, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran is seeking service connection for temporal lobe seizure disorder. The Board previously remanded this matter to obtain a VA examination with etiology opinion. A November 2010 VA examiner observed that prior rating decisions found no relationship between a possible temporal seizure disorder in the military and any head trauma or neurological disease. There was also no documentation of any preexisting neurological disability. Recent evaluations do no confirm any definitive ongoing seizure disorder. The examiner found no compelling new evidence to reverse or change the rating decisions. A September 2011 VA examination report showed that the examiner found that the Veteran's current disorder was not caused by or a result of a closed head injury while doing drill exercise in 1972. However, service treatment records failed to document a closed head injury in service. As such, another VA examination was done in January 2013, the examiner determined that the Veteran's seizure disorder clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond the natural progression of an in-service injury, event or illness. The examiner rationalized that it was established that the Veteran had a head injury prior to service per entrance physical in November 1971 and there was no record of head trauma in service. Moreover, service treatment records do not show complaints or treatment of loss of consciousness, dizziness or spells as currently described by Veteran. However, in August 2011 and November 2013 statements, the Veteran reported that prior to entering service, he was sent to Chelsea Naval Hospital in Chelsea, Massachusetts in late 1971, early 1972 where he underwent a Cat scan that was normal. Unfortunately, these records have not been requested. As the Veteran has asserted that these records are relevant to the current appeal by showing that he did not have a preexisting disability, the Board finds that the AOJ must make reasonable attempts to obtain these records from the National Personnel Records Center (NPRC), following the current procedures prescribed in 38 C.F.R. § 3.159 as regards requests for records from Federal facilities. If these records are obtained, the AOJ should arrange for the examiner who conducted the January 2013 examination to provide an additional opinion as to whether these records alter his previous opinion. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon, 20 Vet. App. at 83. If the same examiner is not available, the AOJ should arrange for another appropriate physician to provide an addendum opinion. The AOJ should only arrange for the Veteran to undergo another VA examination if another examination of the Veteran is deemed warranted by an appropriate physician. With respect to the claim for a left shoulder disability, as observed in the prior remand, the Veteran asserted that he has left shoulder disability secondary to his service-connected knee disabilities. He has reported that his left shoulder was injured due to falling from instability in his knees. As noted in the prior remand, a May 2006 VA treatment record reflects that the Veteran said that he fell down the cellar stairs and hurt his left shoulder in May 2005. A September 2005 MRI revealed a left supraspinatus atrial tear. It was noted that he had had left shoulder surgery in April 2006. A June 2007 MRI revealed a re-tear of the supraspinatus left shoulder. The Board previously remanded this issue to afford the Veteran a VA examination with opinion. A November 2010 VA examiner indicated that prior rating decisions denied any relationships between the Veteran's shoulder and his knees, and this examiner could find no compelling new evidence to reverse or change these rating decision. However, this examiner failed to offer a clearly opinion with sufficient rationale as to whether the Veteran's left shoulder disability was medically related to his left knee injuries, to include falls sustained in May 2005 and July 2006. Another VA opinion was done in April 2011. The examiner opined that that the claimed condition was less likely than not proximately due to or the result of the Veteran's service-connected condition. After reviewing the record, the examiner indicated that the accident in 2006 was not caused by his knee problems. He also observed that the Veteran continued to work after the May 2005 incident. As such, he determined that the left shoulder injuries were not the result of the Veteran's knee conditions. Again, in January 2013, another VA examiner determined that the claimed condition was less likely than not proximately due to the Veteran's service-connected conditions. There was no evidence that the falls were due to his knees and back. There was no evidence that his knees buckled or back gave way. However, all of the VA examiners failed to provide any sort of opinion as to whether the Veteran's left shoulder disability was aggravated by his service-connected knees and low back disabilities. See 38 C.F.R. § 3.310(a); See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). . Under these circumstances, the Board finds that further medical opinion in connection with the service connection claim for left shoulder disability is warranted. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon, 20 Vet. App. at 83. Hence, the AOJ should arrange for the examiner who conducted the January 2013 examination to provide an opinion with rationale as to whether Veteran's whether the Veteran's left shoulder disability is aggravated by his service-connected bilateral knee and low back disabilities. If the same examiner is not available, the AOJ should arrange for another appropriate physician to provide an addendum opinion. The AOJ should only arrange for the Veteran to undergo another VA examination if another examination of the Veteran is deemed warranted by an appropriate physician. If any further examination(s) is/are deemed necessary, the Veteran is hereby notified that failure to report to any such scheduled examination(s), without good cause, may result in denial of the claim(s) for service connection on appeal. See 38 C.F.R. § 3.655 (2014). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. The Board further notes that a March 2010 application for a TDIU and June 2010 VA Form 21-4192 submitted by the Veteran's former employer show that the Veteran retired on June 15, 2009. A June 2009 statement from the Office of Personnel Management (OPM) to the Veteran stated that he was found disabled due to his musculoskeletal disabilities. Importantly, a January 2013 VA examination report showed that the examiner found that it was at least as likely as not that the Veteran's service-connected disabilities, in the aggregate, rendered the Veteran unable to secure or follow substantially gainful occupation during the period of the pending claim. The examiner rationalized that the claims file contained a letter from OPM terminating the Veteran from his job due to his musculoskeletal conditions. The Veteran is currently service connected for degenerative joint disease of the lumbar spine, rated as 20 percent disabling, limitation of flexion of the left knee, rated as 20 percent disability, internal derangement of the right knee, rated as 10 percent disabling, and surgical scars of the right and left knee, rated as noncompensable. The Veteran's current combined evaluation is 50 percent. As such, the Veteran does not meet the scheduler criteria for a TDIU. However, it is VA policy that all veterans who are unable to work due to a service connected disability will be awarded TDIU. 38 C.F.R. § 4.16(b). Where a Veteran does not meet the percentage requirements, but there is evidence of unemployability, the claim for TDIU will be referred to the Director of VA's Compensation and Pension Service. 38 C.F.R. § 4.16(b). If the Veteran does not meet the percentage requirements, the Board cannot grant TDIU in the first instance, but must first insure that the TDIU claim is referred to the Director of Compensation and Pension (C&P) for adjudication. Bowling v. Principi, 15 Vet. App. 1 (2001). In this case, the current January 2013 VA examiner found that the Veteran's service connected disabilities rendered him unemployable. Nevertheless, the Board cannot grant TDIU in the first instance without ensuring that the claim is adjudicated in accordance with 38 C.F.R. § 4.16(b). Hence, this matter must referred to the Director of C&P for extra-schedular consideration, pursuant to 38 C.F.R. § 4.16(b). Prior to undertaking the actions noted above, to ensure that all due process requirements are met, and the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. As for VA records, the most recent treatment records associated with the claims file (in Virtual VA) from the VAMC in West Palm Beach, Florida, are dated up to October 2013. In light of the need to remand for other matters, the AOJ should obtain any additional pertinent records from the West Palm Beach VAMC dated since October 2013, following the current procedures prescribed in 38 C.F.R. § 3.159 as regards requests for records from Federal facilities. The AOJ should also give the Veteran another opportunity to present additional information and/or evidence pertinent to the claims remaining on appeal, explaining that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2013) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the appellant provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the VCAA. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims remaining on appeal. Accordingly, these matters are hereby REMANDED for the following action: 1. Obtain all outstanding, pertinent records of evaluation and/or treatment of the Veteran from the West Palm VAMC, dated since October 2013. Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. 2. Obtain from the National Personnel Records Center (NPRC), the appropriate service department, or any other source (to include from the appellant and his representative, directly, if necessary) copies of the Veteran's neurology consultation at the Chelsea Naval Hospital prior to his service in late 1971, early 1972. In requesting the records from any Federal facility, follow the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the appellant that the records were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claims remaining on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 4. If the Veteran responds, assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. If and only if additional treatment records are obtained from Chelsea Naval Hospital, request that the same physician who conducted the January 2013 VA examination with respect to the Veteran's temporal lobe seizure to provide an addendum opinion to address whether these additional records in anyway alter his prior conclusions that this disability clearly and unmistakably preexisted service, and was clearly and unmistakably not aggravated in service. The contents of the entire claims file (paper and electronic), to include a complete copy of the REMAND, must be made available to the designated individual, and the addendum opinion must reflect consideration of the Veteran's documented medical history and assertions. Complete, clearly-stated rationale for the conclusions reached must be provided. 6. After all records and/or responses received are associated with the record, request that the same physician who conducted the January 2013 VA examination of the Veteran's left shoulder to provide an addendum opinion. If the same physician is not available, request for another appropriate physician to provide the requested opinion. Only arrange for the Veteran to undergo further examination if deemed necessary by a qualified physician. The contents of the entire claims file (paper and electronic), to include a complete copy of the REMAND, must be made available to the designated individual, and the addendum opinion/examination report must reflect consideration of the Veteran's documented medical history and assertions. The physician should offer an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability), that the current left shoulder disability is aggravated (worsened beyond the natural progression) by the Veteran's service-connected bilateral knee and low back disabilities. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. In rendering the requested opinion, the physician should specifically consider and discuss the post-service treatment records, as well as the Veteran's contentions. All examination findings (if any), along with complete, clearly-stated rationale for the conclusions reached, must be provided. 7. Submit the Veteran's claim for a TDIU for extra-schedular consideration to the Director, Compensation and Pension Service for adjudication in accordance with the provisions of 38 C.F.R. 4.16(b). 8. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 9. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the matters remaining on appeal in light of pertinent evidence and legal authority. 10. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2014). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs