Citation Nr: 0812071 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 05-36 337 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an increased evaluation for degenerative disc disease of the cervical spine, currently evaluated as 10 percent disabling. 2. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a seizure disorder. 3. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for degenerative joint disease of the left knee. 4. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for degenerative joint disease of the right knee. 5. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for depression. 6. Entitlement to an increased evaluation for degenerative disc disease of the lumbar spine, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD S. Heneks, Associate Counsel INTRODUCTION The veteran served on active duty from August 1989 to April 1993. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a November 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied the benefits sought on appeal. In January 2008, the veteran presented testimony by the use of video conferencing equipment at a hearing conducted at the Muskogee RO before a Veterans Law Judge (VLJ) sitting in Washington, DC. A transcript of this hearing is in the veteran's claims folder. During his January 2008 hearing, the veteran testified that he cannot work because of his service-connected disabilities. The Board refers the issue of total disability based on individual unemployablility (TDIU) to the RO for any necessary development. The issues of whether new and material evidence has been submitted to reopen claims for entitlement to service connection for degenerative joint disease of the right knee and depression and entitlement to an increased evaluation for degenerative disc disease of the lumbar spine are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran's degenerative disc disease of the cervical spine is not productive of forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; a combined range of motion of the cervical spine not greater than 170 degrees; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; or incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. 3. The RO denied a claim of entitlement to service connection for seizures in a final rating decision dated in October 2002; the veteran did not appeal the RO's decision within the applicable time period. 4. Evidence received since the final October 2002 rating decision, when considered with previous evidence, relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim of service connection for a seizure disorder. 5. The RO denied a claim of entitlement to service connection for left knee degenerative joint disease in a final rating decision dated in October 2002; the veteran did not appeal the RO's decision within the applicable time period. 6. Evidence received since the final October 2002 rating decision, when considered with previous evidence, does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim of service connection for left knee degenerative joint disease. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for degenerative disc disease of the cervical spine have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Code 5237 (2007). 2. The October 2002 rating decision denying service connection for a seizure disorder is final. 38 U.S.C.A. § 7105(c) (West 2002). 3. Evidence received since the October 2002 rating decision denying service connection for a seizure disorder is new and material, and the veteran's claim of entitlement to service connection for a seizure disorder has been reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). 4. The October 2002 rating decision denying service connection for left knee degenerative joint disease is final. 38 U.S.C.A. § 7105(c) (West 2002). 5. Evidence received since the October 2002 rating decision denying service connection for left knee degenerative joint disease is not new and material, and the veteran's claim of entitlement to service connection for left knee degenerative joint disease has not been reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159. Prior to initial adjudication of the veteran's claim for left knee degenerative joint disease, a letter dated in September 2004 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letter advised the veteran what information and evidence was needed to substantiate the claim decided herein and what information and evidence must be submitted by him, namely, any additional evidence and argument concerning the claimed condition and enough information for the RO to request records from the sources identified by the veteran. In this way, he was advised of the need to submit any evidence in his possession that pertains to the claim. Finally the letter advised him what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. Concerning applications to reopen claims that have been the subject of a prior final denial by VA, nothing pertaining to the duty to assist claimants shall be construed to require VA to reopen a claim that has been disallowed except when new and material evidence is presented or secured. 38 U.S.C.A. § 5103A(f). To provide adequate notice with regard to a claim to reopen, VA must look at the bases for the denial in the prior decision and respond with a notice letter that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). That was done here in the September 2004 letter for the claim for left knee degenerative joint disease. Specifically, in the letter, the RO provided the veteran with a definition of new and material evidence as well as the criteria necessary to establish service connection. The letter also satisfied Kent in that it notified the veteran that his original claim was denied because there was no evidence showing this disability either incurred in or was aggravated by his active military service. The veteran was informed that he needed to submit new and material evidence related to this fact in order to raise a reasonable possibility of substantiating his claim that was not simply repetitive or cumulative of the evidence on record when his claim was previously denied. During the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that "upon receipt of an application for a service- connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application." Dingess/Hartman, 19 Vet. App. at 486. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In a letter dated in December 2007, the veteran was provided with notice of the type of evidence necessary to establish a disability rating or the effective date for the disability on appeal. Therefore, the Board finds no prejudice to the veteran in proceeding with the issuance of a final decision. In any event, any defects (as to substance or timeliness) in the notice as to the assigned disability rating or effective date are rendered moot as service connection for left knee degenerative joint disease is not warranted. Regarding the claim for entitlement to service connection for a seizure disorder, the VCAA emphasized VA's obligation to notify claimants what information or evidence is needed in order for a claim to be substantiated, and it affirmed VA's duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002). In this case, the RO had a duty to notify the veteran what information or evidence was needed in order reopen a claim for service connection for a seizure disorder. VCAA specifically provided that nothing in amended section 5103A, pertaining to the duty to assist claimants, shall be construed to require VA to reopen a claim that has been disallowed except when new and material evidence is presented or secured. 38 U.S.C.A. § 5103A(f). In the decision below, the Board has reopened the veteran's claim for service connection for a seizure disorder, and therefore, regardless of whether the requirements of the VCAA have been met in this case, no harm or prejudice to the appellant has resulted. Therefore, the Board concludes that the provisions of the VCAA and the current laws and regulations have been complied with, and a defect, if any, in providing notice and assistance to the veteran was at worst harmless error in that it did not affect the essential fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103, 115 (2005); Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004); Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. Turning to the veteran's claim for an increased evaluation for degenerative disc disease of the cervical spine, prior to initial adjudication of the veteran's claim, a letter dated in September 2004 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letter advised the veteran what information and evidence was needed to substantiate the claim decided herein and what information and evidence must be submitted by him, namely, any additional evidence and argument concerning the claimed condition and enough information for the RO to request records from the sources identified by the veteran. In this way, he was advised of the need to submit any evidence in his possession that pertains to the claim. Finally the letters advised him what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. In a letter dated in December 2007, the veteran was provided with notice of the type of evidence necessary to establish a disability rating or the effective date for the disability on appeal. Further, since the veteran did not submit any additional evidence after the December 2007 VCAA letter was sent to him, and the veteran did not inform VA of any outstanding evidence relevant to his claim during his January 2008 hearing, the failure by the VA regional office to conduct a subsequent readjudication is not prejudicial because the result of such a readjudication on exactly the same evidence and law previously considered would be no different than the previous adjudication. See generally Medrano v. Nicholson, 21 Vet. App. 165 (2007). For an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App. January 30, 2008). Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation, e.g. competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, slip op. at 5-6. In this case, the Board does acknowledge that the RO did not provide the veteran with fully compliant notice in connection with the holding of Vazquez-Flores for his claim for an increased evaluation for degenerative disc disease of the cervical spine prior to the initial rating decision in November 2004. Nevertheless, the RO did send the veteran letters in September 2004 and December 2007, which did meet the notification requirements. Further, as will be discussed below, the veteran has shown actual knowledge of the elements of Vazquez-Flores. Moreover, the requirements with respect to the content of the notice were met in this case. The RO informed the veteran in the notice letters about the information and evidence that is necessary to substantiate his claim for an increased evaluation. Specifically, the September 2004 letter stated, "To establish entitlement to an increased evaluation for your service-connected disability, the evidence must show that your service-connected condition has gotten worse." The December 2007 letter listed examples of evidence that the veteran should tell VA about or provide regarding his disability evaluation including statements from employers as to job performance, lost time, or other information regarding how his condition affects his ability to work. The December 2007 letter also noted that such evidence could be statements discussing his disability symptoms from people who have witnessed how they affect him and information about on-going treatment records, including VA records. The December 2007 letter also advised the veteran to notify VA if there was any other information or evidence that he believed would support his claim or provide it to VA. As such, the notice letters in this case did indicate that the veteran must provide or ask VA to obtain medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Further, the veteran was afforded two VA examinations in November 2004 and June 2007 to assess the level of severity of his disability and its impact on his employment and daily life. Moreover, the veteran testified in January 2008 about the impact of his disability on his daily activities and its level of severity, demonstrating actual knowledge of these elements. See Simmons v. Nicholson, 487 F.3d 892 (Fed. Cir. 2007); Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007); Mayfield v. Nicholson, 20 Vet. App. 537 (2006). The December 2007 letter also notified the veteran that should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. That letter indicated that disability rating can be changed when there are changes in the condition. The letter stated that a rating will be assigned from 0 percent to 100 percent depending on the disability involved and explained that VA uses a schedule for evaluating disabilities that is published in Title 38, Code of Regulations, Part 4. It was also noted that a disability evaluation other than the level found in the schedule for a specific condition can be assigned if the impairment is not adequately covered by the schedule. The December 2007 letter further indicated that evidence of the nature and symptoms of the disability, the severity and duration of the symptoms, and the impact of the condition and symptoms on employment would be considered in determining the disability rating. Additionally, as will be discussed below, the veteran is currently assigned a 10 percent disability evaluation for degenerative disc disease of the cervical spine pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5237. The veteran was provided the regulations containing the criteria necessary for a higher rating pertaining to his claim in the August 2005 statement of the case (SOC) and the claim was subsequently readjudicated in a June 2007 supplemental statement of the case (SSOC). Further, the veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices, and he has taken full advantage of these opportunities, submitting evidence and argument in support of his claim. Importantly, the veteran was afforded two VA examinations and testified at a hearing, during which times he provided evidence regarding why he felt his service- connected disability warranted a higher rating. Viewed in such context, the essential fairness of the adjudication and the veteran has had a "meaningful opportunity to participate effectively." Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Conway v. Principi, 353 F.3d 1369, 1373 (Fed. Cir. 2004). Further, the Board finds that the September 2004 and December 2007 notice letters and opportunity to develop the case as mentioned above provided during the extensive administrative appellate proceedings leading to the final Board decision served to render any pre-adjudicatory section 5103(a) notice error non-prejudicial." Vazquez-Flores, slip op. at 9. Based on the foregoing, the Board finds that the veteran was informed of or had actual knowledge of the information and evidence necessary to substantiate his claim for an increased evaluation and satisfied the additional notice requirements of Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008). See Simmons v. Nicholson, 487 F.3d 892 (Fed. Cir. 2007); Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007); Mayfield v. Nicholson, 20 Vet. App. 537 (2006). In addition, the duty to assist the veteran has also been satisfied in this case. The veteran's service medical records as well as all available VA medical records and private medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the veteran's claims. The veteran was also afforded VA examinations in November 2004 and June 2007. VA has further assisted the veteran and his representative throughout the course of this appeal by providing them a SOC and SSOC, which informed them of the laws and regulations relevant to the veteran's claims. For these reasons, the Board concludes that VA has fulfilled the duty to assist the veteran in this case. LAW AND ANALYSIS 1. Entitlement to an increased evaluation for degenerative disc disease of the cervical spine, currently evaluated as 10 percent disabling. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, No. 05-2424, 2007 WL 4098218, at *3 (U.S. Vet. App. Nov. 19, 2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portrays the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. The veteran's service-connected degenerative disc disease of the cervical spine is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237. Under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 10 percent disability evaluation is assigned when there is forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability evaluation is warranted when there is forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, Diagnostic Code 5237. Note 1 to this provision provides that associated objective neurologic 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, Note (1) (2007). Further, for VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motions for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2) (2007). See also 38 C.F.R. § 4.71a, Plate V (2007). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent disability evaluation is contemplated for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent disability evaluation is assigned for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. An incapacitating episode is defined as 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. Note (1). If intervertebral disc syndrome 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 chronic orthopedic and neurologic manifestations or 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. Note (2). In considering the evidence of record under the laws and regulations as outlined above, the Board finds that the veteran is not entitled to an increased evaluation in excess of 10 percent for his service-connected degenerative disc disease of the cervical spine. In this regard, the evidence of record did not show forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; the combined range of motion of the cervical spine not greater than 170 degrees; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; or incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. In this regard, during the November 2004 VA examination, there was normal musculature of the neck, no spasm, no tenderness, no weakness, and motor function was intact without any weakness or atrophy. No fixed deformity was noted and sensory function was intact. Specifically, flexion was 30 degrees without pain and 40 degrees with pain and the combined range of motion was 220 degrees without pain and 230 with pain. Additionally, the veteran reported no history of any incapacitation requiring bed rest during the last twelve months because of his neck. During the June 2007 VA examination, there was no fixed deformity, musculature of the neck was normal, no weakness, no tenderness, and no spasms. Motor function was intact without weakness or atrophy and reflexes and sensory function was normal. Flexion was 40 degrees with no pain noted. Range of motion was 225 degrees and 230 with pain. Further, the veteran's posture and gait were normal and he used no braces during both examinations. Moreover, there were no periods of incapacitation in the last twelve months. As such, the veteran's service-connected degenerative disc disease of the cervical spine had not been shown to more nearly approximate the criteria for a higher rating under 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5237 or 5243. As noted above, staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, No. 05-2424, 2007 WL 4098218, at *3 (U.S. Vet. App. Nov. 19, 2007). However, in this case, the factual findings do not demonstrate that at any time during this appeal that the veteran's service-connected degenerative disc disease of the cervical spine warranted a higher rating. As such, entitlement to a rating in excess of 10 percent for degenerative disc disease of the cervical spine is denied. 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5237, 5243; Hart v. Mansfield, No. 05-2424, 2007 WL 4098218, at *3 (U.S. Vet. App. Nov. 19, 2007). The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an increased evaluation for the veteran's service-connected degenerative disc disease of the cervical spine is not warranted on the basis of functional loss due to pain or weakness in this case, as the veteran's symptoms are supported by pathology consistent with the assigned 10 percent rating, and no higher. In this regard, the Board observes that the veteran has complained of pain, tension, flare-ups, and tightness; however, these symptoms are contemplated in the currently assigned 10 percent disability evaluation. Therefore, the Board finds that the preponderance of the evidence is against an increased evaluation for the veteran's service-connected degenerative disc disease of the cervical spine. During the November 2004 VA examination, although the veteran complained of pain, there was no history of numbness or radiation of the pain, no additional limitation of motion or functional impairment during the flare-up, no history of numbness or weakness, no unsteadiness or falls, no affect in his daily activities because of neck pain. Upon examination, there was no limitation of the movements of the cervical spine because of pain, weakness, fatigue, or repetitive use and the veteran was able to tolerate the pain during flexion. During the June 2007 VA examination, there was no incoordination, limitation of motion due to pain, weakness, fatigue, or repetitive use. Although the veteran testified that he had muscle spasms, tension, flare-ups, tightness, and locking, the Board finds it significant that during his most recent examination in June 2007, there was no history of dizzy spells, unsteadiness, numbness, or any affect on his activities of daily living. Significantly, the veteran told the examiner that he did not have many problems with his neck. The veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. Therefore, the Board finds that the preponderance of the evidence is against an increased evaluation for the veteran's service-connected degenerative disc disease of the cervical spine. In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). In this case, however, there has been no showing that the veteran's service-connected degenerative disc disease of the cervical spine has caused marked interference with employment beyond that contemplated by the schedule for rating disabilities, necessitated frequent periods of hospitalization, or otherwise renders impractical the application of the regular schedular standards utilized to evaluate the severity of his disability. Importantly, the veteran testified during his January 2008 hearing that he is unable to work due to his seizure disorder and lumbar spine disability. As such, the medical evidence of record does not show that his service-connected cervical spine disability had interfered with employment beyond the regular schedular criteria nor that his service-connected cervical spine rendered him unemployable. In the absence of such factors, the Board finds that the requirements for an extraschedular evaluation for the veteran's service-connected degenerative disc disease of the cervical spine under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). 2. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a seizure disorder. In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. For applications filed after August 29, 2001, as was the application to reopen the claim in this case, new and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). An October 2002 RO decision originally denied service connection because there was no evidence showing a diagnosis or treatment for seizures on active duty or evidence that the veteran currently had a seizure disorder. Because the veteran did not appeal that decision, it is final and not subject to revision on the same factual basis. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. The veteran, however, now seeks to reopen his claim. As noted, despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is furnished with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). With these considerations, the Board has reviewed the record, with particular attention to the additional evidence received since the final October 2002 rating decision. After reviewing the record, the Board finds that the additional evidence received since the final October 2002 rating decision is new and material within the meaning of 38 C.F.R. § 3.156(a). The evidence associated with the veteran's claims file subsequent to the October 2002 decision includes, but is not limited to, an undated service medical record which noted that the veteran felt weak, dizzy, and that he might lose consciousness and had headaches; VA treatment records dated from 2002 to 2007 which reflected that the veteran currently has seizures; and an October 2006 private medical opinion from Dr. S.G. which stated that it was reasonable to have a strong suspicion that the spells the veteran suffered in 1991 were part of his current epileptic disorder. As noted, the veteran's claim was previously denied because there was no evidence showing a diagnosis or treatment for seizures on active duty or evidence that the veteran currently had a seizure disorder. The veteran has now provided evidence of a current seizure disorder; an in- service record showing he felt weak, dizzy, and that he might lose consciousness and had headaches; and an October 2006 private opinion which states that it is reasonable that the spells the veteran contended he suffered from in-service are part of his current epileptic disorder. Obviously, this evidence is new in that it was not previously of record. Moreover, this evidence relates to unestablished facts necessary to substantiate his claim. Further, as the credibility is presumed, the evidence as a whole raises a reasonable possibility of substantiating the claim. Justus, 3 Vet. App. at 513. For these reasons, the Board finds that the additional evidence received since October 2002 warrants a reopening of the veteran's claim of service connection for a seizure disorder, as it is new and material evidence within the meaning of 38 C.F.R. § 3.156(a). 3. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for degenerative joint disease of the left knee. In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. For applications filed after August 29, 2001, as was the application to reopen the claim in this case, new and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). An October 2002 RO decision originally denied service connection because there was no evidence showing that left knee degenerative joint disease occurred in or was caused by the veteran's active duty service. Because the veteran did not appeal that decision, it is final and not subject to revision on the same factual basis. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. The veteran, however, now seeks to reopen his claim. As noted, despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is furnished with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). With these considerations, the Board has reviewed the record, with particular attention to the additional evidence received since the final October 2002 rating decision. After reviewing the record, the Board finds that the additional evidence received since the final October 2002 rating decision is not new and material within the meaning of 38 C.F.R. § 3.156(a). The evidence associated with the veteran's claims file subsequent to the October 2002 decision includes, but is not limited to, additional service medical records, which were absent for complaints of regarding the left knee; VA treatment records dated from 2002 to 2007, which indicated findings of bilateral knee pain and the veteran's contentions in March and October 2003 that he suffered from left knee pain since 1994 and after an accident in the military; and the veteran's testimony that his current left knee disability was related to lifting and repair work in service and when he hit his knees on the dashboard during his in-service motor vehicle accident. As noted, the veteran's claim was previously denied because there was no evidence showing that left knee degenerative joint disease occurred in or was caused by the veteran's active duty service. Although the veteran contends that his left knee disability began in-service following a motor vehicle accident, the veteran's statements are not supported by the evidence of record. As previously noted, the veteran's service medical records were absent for left knee related complaints. Importantly, October 1992 records pertaining to the veteran's motor vehicle accident did not mention any left knee complaints. Despite the March 1993 report of medical history notation that the veteran had swollen or painful joints, it appears that lower back was written above this section. Further, the veteran did not indicate a "trick" or locked knee and there was no notation of anything specific to his left knee. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran). Thus, when considering the veteran's contention with the evidence of record, the Board finds that the medical evidence does not support that his left knee disability began in service. Therefore, there remains no evidence on the record received since the October 2002 decision, which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (2001). Significantly, there is still no competent medical evidence linking the veteran's left knee degenerative joint disease to service. 38 C.F.R. §§ 3.303, 3.307, and 3.309(a). Accordingly, the Board finds that new and material evidence has not been presented to reopen the veteran's previously denied claim for service connection for degenerative joint disease of the left knee. ORDER Entitlement to an increased evaluation for degenerative disc disease of the cervical spine, currently evaluated as 10 percent disabling, is denied. New and material evidence having been received, the claim of entitlement to service connection for a seizure disorder is reopened; to that extent only, the appeal is granted. New and material evidence having not been received, entitlement to service connection for degenerative joint disease of the left knee remains denied. REMAND 2. Entitlement to service connection for a seizure disorder As reflected above, the Board has found new and material evidence to reopen the veteran's claim for entitlement to service connection for a seizure disorder. However, for the following reasons, the Board feels that additional development is needed before a decision can be made on the merits of the claim. During his January 2008 hearing, the veteran testified that his seizures began following a motor vehicle accident in October 1992. He added that a neurologist believed that his seizures and blackouts were because of the motor vehicle accident. Correspondence from the National Personnel Records Center (NPRC) dated in April 2002 reflected that the veteran's service medical records are not available. The veteran's available service medical records relevant to his motor vehicle accident in October 1992 did not mention any head trauma. In particular, an October 1992 emergency care and treatment record noted that the veteran did not have loss of consciousness (LOC) or head trauma. The assessment was acute cervical musculotendinous strain. The service medical records also contained an undated record, submitted by the veteran in October 2003, which noted that the veteran felt weak, dizzy, and that he might lose consciousness and had headaches. The plan was to refer him to P.A. The first post-service medical evidence of a seizure disorder was in a February 2002 VA treatment entry. At that time, the veteran contended that he suffered from seizures since 1991. The veteran stated that his first spell of backing out where he lost track and closed his eyes for a few seconds/minutes occurred while he was serving in the Gulf War. He added that he had these spells approximately once a week and thought they were related to the hot weather. In 1998, he experienced two seizures and was seen at private hospital S.J. At that time, the veteran had one to two seizures a month. The assessment was seizure disorder of an unknown etiology. In September 2002, the assessment was medically intractable seizure disorder, partial seizures with secondary generalization of unclear etiology. Following a December 2002 VA 90 hour video EEG monitoring study, the veteran was felt to have localization related epilepsy, specifically left temporal lobe epilepsy. A February 2004 VA treatment entry indicated that the veteran was admitted to a private hospital, S.J., in December 2003 following a seizure. An April 2005 VA treatment entry diagnosed the veteran with a cognitive disorder characterized by a complex partial seizure disorder with left temporal epileptogenic focus. In October 2006, private physician Dr. S.G. noted that the veteran reported that he began to experience seizures of loss of awareness and brief loss of consciousness around 1991 and received a diagnosis of blackout spells and continued to have more frequent spells, confusional episodes, memory lapses, and was later diagnosed with epilepsy. Dr. S.G. opined that there was no way to prove with absolute certainty what exactly the episodes of loss of consciousness the veteran had in 1991 represented but since he has an epileptogenic focus in the left temporal lobe and no evidence of a tumor, it was reasonable to have a strong suspicion that the spells the veteran suffered in 1991 were part of the epileptic disorder. Additionally, an October 2007 letter from private medical center, S.J., reflected that the veteran was admitted to that facility with a diagnosis of right cerebellar ischemic stroke. It was noted that the veteran had a seizure disorder and had seizures throughout his hospital stay. The Board finds that a VA examination is necessary in connection with the veteran's claim for a seizure disorder. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. In this case, there is evidence of a current seizure disorder, evidence that the veteran might have suffered seizures in-service, and the October 2006 private opinion from Dr. S.G. which indicated that it was reasonable to have a strong suspicion that the spells the veteran suffered in 1991 were part of the epileptic disorder, and there is insufficient evidence to decide the claim. In this regard, although Dr. S.G. opined that it was reasonable to have a strong suspicion that the spells the veteran suffered in 1991 were part of his current disorder, she did not opine as to the degree of certainty. Further, the Board notes that records from S.J. should be obtained on remand to gather more information on the veteran's seizure disorder. Additionally, during an August 2002 VA examination, the veteran was noted to be unemployed since 2001 secondary to grand mal seizures. Additionally, a May 2003 document reflected that the veteran has been in receipt of Social Security benefits (SSA) since May 2001. The U.S. Court of Appeals for Veterans Claims has held that, where VA has notice that the veteran is receiving disability benefits from the SSA, and that records from that agency may be relevant, VA has a duty to acquire a copy of the decision granting Social Security disability benefits, and the supporting medical documents on which the decision was based. See Hayes v. Brown, 9 Vet. App. 67 (1996). Under the circumstances presented here, the RO should request the veteran's SSA medical records. 4. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for degenerative joint disease of the right knee. The veteran was originally denied service connection for degenerative joint disease of the right knee in an October 2002 RO decision because there was no evidence showing this disability either occurred in or was caused by his active duty service. In a May 2003 RO decision, this claim was denied because there was no evidence of incurrence of a right knee disability in service or medical evidence showing X-ray evidence of arthritis of the right knee within one year of separation from service. However, the September 2004 VCAA letter did not address the May 2003 RO decision. As such, the veteran has not been provided with proper Kent v. Nicholson, 20 Vet. App. 1 (2006) notice information. Therefore, this claim must be remanded for proper notice. 5. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for depression. The Board notes the veteran's testimony during his January 2008 hearing that he is depressed secondary to his service- connected cervical and lumbar spine disabilities. However, an April 2005 VA treatment entry reflected that the veteran had depression independent of and in conjunction with his seizures. Currently, there is no evidence of record indicating an association, besides the veteran's assertions, of an association between any current depression and his service-connected cervical and lumbar spine disabilities. As noted above, the veteran's claim for entitlement to service connection for a seizure disorder is remanded for further development. However, because the record raises a claim of depression as secondary to seizures, the claim entitlement to service connection for depression is intertwined with the claim for entitlement to service connection for a seizure disorder on appeal. See Harris v. Derwinski, 1 Vet. App. 181, 183 (1991) ([two or more issues are inextricably intertwined if one claim could have significant impact on the other). See also, e.g., Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996). Pending the outcome of the claim for entitlement to service connection for a seizure disorder, the issue must be held in abeyance and thereafter, following the outcome of remand for entitlement to service connection for a seizure disorder, the claim for depression should either be remanded for compliance with Kent v. Nicholson, 20 Vet. App. 1 (2006) or reopened if the claim for entitlement to service connection for a seizure disorder is granted on remand. Further, the Board notes that the veteran has not been provided with the new laws and regulations pertinent to his claim for service connection for depression as secondary to a service-connected disability. In September 2006, while this appeal was pending, this regulation was amended; therefore, on remand, the RO should provide the veteran with both the old version of the regulation prior to the amendment and the new version. 38 C.F.R. § 3.310(a) (2006) and 38 C.F.R. § 3.310(b) (2007). 6. Entitlement to an increased evaluation for degenerative disc disease of the lumbar spine, currently evaluated as 20 percent disabling. During his January 2008 hearing, the veteran testified that he was not able to complete the range of motion portion of his last VA examination in June 2007 because of pain. Further, he contended that in the last twelve months, he had 60 days of incapacitating episodes where he was not able to get out of bed. Because the veteran was not able to complete the range of motion portion of his last VA examination and he contends that he has had 60 days of incapacitating episodes in the last twelve months and there is not adequate medical evidence on which to rate him after the last examination in June 2007, the Board finds that a remand is necessary to obtain an examination to assess the current level of disability in the veteran's service-connected degenerative disc disease of the lumbar spine. 38 U.S.C.A. § 5103A(d) (West 2002); see also Caffrey v. Brown, 6 Vet. App. 377 (1994); see also Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Additionally, during the course of this appeal, the Court issued a decision in Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App. January 30, 2008), which held that for an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation, e.g. competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, slip op. at 5-6. However, in this case, the Board notes that the veteran has not been adequately provided such notice, and thus, the claim must also be remanded for proper notice pursuant to Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App. January 30, 2008). Accordingly, the case is REMANDED for the following action: 1. After securing any necessary release from the veteran, the AMC/RO should obtain relevant treatment records from private facility S.J. pertaining to the veteran's claim for entitlement to service connection for a seizure disorder from approximately 1998 to the present and associate them with the claims file. 2. The AMC/RO should obtain relevant records pertaining to his claim for entitlement to service connection for a seizure disorder from SSA and associate them with the claims file. Note that the veteran has been in receipt of SSA benefits since May 2001. 3. The veteran should be scheduled for an examination to evaluate his claim for entitlement to service connection for a seizure disorder. The claims folder and a copy of this REMAND must be made available to the examiner in conjunction with the examination. The examination report must include responses to the each of the following items: a. Based on a review of the claims folder and the examination findings, provide a diagnosis of any seizure disorder that is present. If it is not possible to provide a specific diagnosis, so state. b. If a seizure disorder is found, state a medical opinion as to the likelihood (likely, unlikely, at least as likely as not) that it began during his period of service (August 1989 to April 1993). (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) The Board is particularly interested in ascertaining the relationship between the an undated record, submitted by the veteran in October 2003, which noted that the veteran felt weak, dizzy, and that he might lose consciousness and had headaches and his current seizures. The examiner should also note the September 2002 VA assessment of medically intractable seizure disorder, partial seizures with secondary generalization of unclear etiology, December 2002 VA 90 hour video EEG monitoring study results of localization related epilepsy, specifically left temporal lobe epilepsy, and an April 2005 VA diagnosis of cognitive disorder characterized by a complex partial seizure disorder with left temporal epileptogenic focus. The examiner should also note Dr. S.G.'s October 2006 opinion that there was no way to prove with absolute certainty what exactly the episodes of loss of consciousness the veteran had in 1991 represented but since he has an epileptogenic focus in the left temporal lobe and no evidence of a tumor, it was reasonable to have a strong suspicion that the spells the veteran suffered in 1991 were part of the epileptic disorder. 4. The AMC should notify the veteran of the definition of new and material evidence to reopen a claim for entitlement to service connection for right knee degenerative joint disease as set forth in the current version of section 3.156(a) of VA regulations and inform him what is necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous final denial of his claim in the May 2003 RO decision. Kent v. Nicholson, 20 Vet. App. 1 (2006) The letter should also include an explanation as to the information or evidence needed to establish a disability rating and an effective date, as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 5. The claims for entitlement for service connection for a seizure disorder and for entitlement to service connection for depression to include as secondary to a seizure disorder are "inextricably intertwined" and, therefore, must be adjudicated together. Following the outcome of remand for entitlement to service connection for a seizure disorder, the claim for depression should either be remanded for compliance with Kent v. Nicholson, 20 Vet. App. 1 (2006) or reopened if the claim for entitlement to service connection for a seizure disorder is granted on remand. If the benefits sought are not granted, the veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The SSOC should set forth all applicable laws and regulations pertaining to each issue, including both the old and the new version of the regulation for secondary service connection. 38 C.F.R. § 3.310(a) (2006) and 71 Fed. Reg.52744-52747 (Sept. 7, 2006) (2007). 6. The RO should send the veteran a notice letter in connection with his claim for an increased evaluation for degenerative disc disease of the lumbar spine. The letter should (1) inform him of the information and evidence that is necessary to substantiate the claim; (2) inform him about the information and evidence that VA will seek to provide; (3) inform him about the information and evidence he is expected to provide; and (4) ask him to provide any evidence in his possession that pertains to the claim. The letter should also include an explanation as to the information or evidence needed to establish a disability rating and an effective date, as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In addition, the letter should tell the claimant to provide medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. If the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the RO should provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. The notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation and TDIU. See Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App. January 30, 2008). 7. The veteran should be afforded a VA examination to ascertain the severity and manifestations of his service-connected degenerative disc disease of the lumbar spine. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the veteran's service-connected disability. The examiner should report all signs and symptoms necessary for rating the veteran's disability under the rating criteria. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2007), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefits sought are not granted, the veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals 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. 2007). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs