Citation Nr: 0812405 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 04-41 413 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for bilateral feet metatarsalgia with drawer instability. 2. Entitlement to an initial evaluation in excess of 10 percent for chondromalacia patellae of the left knee. 3. Entitlement to an initial evaluation in excess of 10 percent for chondromalacia patellae of the right knee. 4. Entitlement to an initial compensable evaluation for colonic polyps. 5. Entitlement to an initial compensable evaluation for residuals of a compression fracture of T-12. 6. Entitlement to an initial compensable evaluation for a benign, right, mid lung opacity. 7. Entitlement to service connection for a right hand disability. 8. Entitlement to service connection for a right wrist disability. 9. Entitlement to service connection for Achilles tendonitis. 10. Entitlement to service connection for a cervical spine disability. 11. Entitlement to service connection for a lumbar spine disability. 12. Entitlement to service connection for chronic fatigue syndrome, claimed as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G.A. Wasik, Counsel INTRODUCTION The veteran had active duty service from June 1988 to August 1994. He served in Southwest Asia from August 1990 to March 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). The veteran testified at a Board videoconference hearing in February 2008. At the time of the February 2008 video conference hearing conducted by the undersigned, the veteran withdrew the claim of entitlement to a 10 percent disability evaluation based on multiple, non-compensable service-connected disabilities. The issue is no longer in appellant status. See Hamilton v. Brown, 4 Vet. App. 528 (1993) (en banc), aff'd, 39 F.3d 1574 (Fed. Cir. 1994) (holding that the Board is without the authority to proceed on an issue if the veteran indicates that consideration of that issue should cease); see also 38 C.F.R. § 20.204. The issues of entitlement to an initial evaluation in excess of 10 percent for bilateral feet metatarsalgia with drawer instability, entitlement to an initial evaluation in excess of 10 percent for chondromalacia patellae of the left knee, entitlement to an initial evaluation in excess of 10 percent for chondromalacia patellae of the right knee, entitlement to an initial compensable evaluation for colonic polyps, entitlement to an initial compensable evaluation for residuals of a compression fracture of T-12, entitlement to an initial compensable evaluation for a benign, right, mid lung opacity, entitlement to service connection for a right wrist disability, entitlement to service connection for a cervical spine disability, and entitlement to service connection for a lumbar spine disability 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. VA will inform the appellant if any further action is required on his part. FINDINGS OF FACT 1. The competent evidence of record demonstrates that the veteran does not currently have Achilles tendonitis. 2. The competent evidence of record demonstrates that the veteran does not currently have chronic fatigue syndrome and the veteran's fatigue has been attributed to a known diagnosis. CONCLUSIONS OF LAW 1. Achilles tendonitis was not incurred in or aggravated by the veteran's active duty service. 38 U.S.C.A. §§ 1101, 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). 2. Chronic fatigue syndrome, was not incurred in or aggravated by the veteran's active duty service and may not be presumed to be related to his active duty service. 38 U.S.C.A. §§ 1101, 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.317 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations set forth certain notice and assistance provisions. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a). After reviewing the claims folder, the Board finds that the appellant has been notified of the applicable laws and regulations which set forth the criteria for entitlement to VA benefits. Specifically, the discussions in October 2002, May 2004, February 2006 and March 2006 VCAA letters have informed the appellant of the information and evidence necessary to warrant entitlement to the benefits sought and adjudicated by this appeal. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board also notes that the February 2006 VCAA letter explicitly notified the veteran of the need to submit any pertinent evidence in his possession. The Board finds that the requirements of 38 C.F.R. § 3.159(b)(1) have been met. The Board finds that all notices required by VCAA and implementing regulations were furnished to the appellant and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. In this case, the RO's decisions came before complete notification of the veteran's rights under the VCAA. It is arguable that the VCAA notice was not timely. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds, however, that any defect with respect to the timing of the VCAA notice in this case was harmless error for the reasons specified below. Subsequent to the rating decisions on appeal, the RO did provide notice to the claimant regarding what information and evidence was needed to substantiate the claims and the veteran has had the chance to submit evidence in response to the VCAA letters. Under these circumstances, the Board finds that all notification and development action needed to render a fair decision on the claims decided herein has been accomplished and that adjudication of the claims, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993). 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 VCAA 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. See Dingess/Hartman, supra. In the present appeal, the appellant was provided with notice of what type of information and evidence was needed to substantiate the claims in the October 2002, May 2004 and February 2006 VCAA letters, and was provided with notice of the types of evidence necessary to establish any disability rating and/or the effective date in the March 2006 VCAA letter. The appellant's status as a veteran has never been at issue. All the VCAA requires is that the duty to notify is satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. The record demonstrates that all VA records identified by the veteran have been obtained to the extent possible. The veteran has been afforded appropriate VA examinations. The Board finds the requirements of 38 C.F.R. § 3.159(c)(4) have been met. No additional pertinent evidence has been identified by the appellant as relevant to the issue on appeal decided herein. Under the circumstances of this particular case, no further action is necessary to assist the appellant. Service connection criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Further, VA regulation provides that, with chronic disease shown as such in service (or within an applicable presumptive period under section 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of an evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A claim for service connection generally requires competent evidence of a current disability; proof as to incurrence or aggravation of a disease or injury in service, as provided by either lay or medical evidence, as the situation dictates; and competent evidence as to a nexus between the in-service injury or disease and the current disability. Cohen v. Brown, 10 Vet. App. 128, 137 (1997); Layno v. Brown, 6 Vet. App. 465 (1994). The Court has consistently held that, under the law cited above, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly reaffirmed by the Federal Circuit, which has stated, "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Entitlement to service connection for Achilles tendonitis. Service connection is not warranted for Achilles tendonitis. While the service medical records document that the veteran was treated one time for the disability in August 1988, there is no competent evidence of record documenting the current existence of Achilles tendonitis. At the time of a December 2002 VA examination, the veteran was nonfocal in his reported history regarding the tendo Achilles injury and course of recovery. Physical examination revealed that the tendo Achilles were supple and nontender without scar, swelling, limitation, deformity or weakness. The pertinent assessment was no evidence of residual tendo Achilles pathology. The only evidence of record which indicates that the veteran currently has Achilles tendonitis which was etiologically linked to his active duty service is the veteran's own allegations and testimony. As a lay person, however, the veteran is not competent to make a medical diagnosis or to relate a medical disorder to a specific cause. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). His opinion as to the existence and etiology of Achilles tendonitis is without probative value. There is no competent evidence of record documenting the current existence of Achilles tendonitis. In the absence of evidence of current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Entitlement to service connection for chronic fatigue syndrome, claimed as due to an undiagnosed illness. Specific to Persian Gulf War service, service connection may be granted for objective indications of a chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms, to include, but not limited to, signs or symptoms involving skin; muscle or joint pain; neurologic signs or symptoms; neuropsychologic signs or symptoms; sleep disturbances; or gastrointestinal signs or symptoms. The chronic disability must have become manifest either during active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2011, and must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(b); See 71 Fed. Reg. 75669 (Dec. 18, 2006) and 72 Fed. Reg. 68507 (Dec. 15, 2007) (adding the December 31, 2011 date). A Persian Gulf veteran is a veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 U.S.C.A. § 1117(e); 38 C.F.R. § 3.317(d). In changes to the statute, effective March 1, 2002, the term "chronic disability" was changed to "qualifying chronic disability," and the definition of "qualifying chronic disability" was expanded to include (a) undiagnosed illness, (b) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. 38 U.S.C.A. § 1117(a)(2)(B). Effective June 10, 2003, VA promulgated revised regulations to, in part, implement these statutory changes. See 68 Fed. Reg. 34539-34543 (June 10, 2003). For purposes of this section, the term "medically unexplained chronic multisymptom illness" means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). For purposes of § 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). The Board finds that service connection is not warranted on a direct basis for chronic fatigue syndrome. The service medical records reference complaints of fatigue in November 1993 but this was attributed to a viral syndrome. There were no further complaints of fatigue. There were no diagnoses of chronic fatigue syndrome in the service medical records. There is no competent evidence of record of the current existence of chronic fatigue syndrome. A VA examination was conducted in December 2002 to determine if the veteran currently had chronic fatigue syndrome. The veteran reported that his fatigue began in March 1991. It was not relieved by rest or taking a nap. He reported problems sleeping at that time. He was reportedly depressed and badly treated by a superior. At the time of the examination, the veteran reported that he was able to sleep 8 hours at a time and he had less frequent fatigue. The pertinent diagnosis was that the veteran did not have a true chronic fatigue syndrome. The examiner attributed the symptomatology to insomnia secondary to depression. The Board notes that service connection has already been granted for adjustment disorder with depressed mood. The only evidence of record which indicates that the veteran has chronic fatigue syndrome which is linked to active duty service is the veteran's own allegations. He testified before the undersigned in February 2008 that he did not complain of fatigue while on active duty but he did experience fatigue from the time of his deployment to Desert Shield. The Board notes that the veteran is competent to report on the presence of fatigue. Competent lay evidence is any evidence not requiring that the proponent to have specialized education, training, or experience. Lay evidence is considered competent if it is provided by a person who has knowledge of facts or circumstances and who can convey matters that can be observed and described by a layperson. See 38 C.F.R. § 3.159(a)(2). The veteran is not competent, however, to attribute the fatigue to a specific cause. As a lay person, the veteran is not competent to make a medical diagnosis or to relate a medical disorder to a specific cause. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). His opinion as to the existence and etiology of chronic fatigue syndrome is without probative value. There is no competent evidence of record documenting the current existence of chronic fatigue syndrome. In the absence of evidence of current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board finds that service connection is not warranted based on the presence of an undiagnosed illness. The symptomatology reported by the veteran has been attributed by competent evidence to a diagnosed causality - a service- connected mental disorder. The examiner who conducted the 2002 VA examination determined that the veteran's fatigue was due to insomnia linked to depression. The cause of the veteran's fatigue is not due to an undiagnosed illness. 38 C.F.R. § 3.317. Conclusion After reviewing the totality of the relevant evidence, the Board is compelled to conclude that the preponderance of such evidence is against entitlement to service connection for the disabilities decided herein. It follows that there is not a state of equipoise of the positive evidence with the negative evidence to permit favorable determinations pursuant to 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for Achilles tendonitis is not warranted. The appeal is denied. Entitlement to service connection for chronic fatigue syndrome, claimed as due to an undiagnosed illness, is not warranted. The appeal is denied. REMAND The veteran has claimed entitlement to an increased rating for his bilateral foot disability. The only VA examination of the feet which was conducted for compensation and pension purposes was conducted in December 2002. At that time, the veteran had vague pedal complaints aggravated by a high level of ambulatory activities. At the time of the February 2008 video conference hearing, the veteran testified that he experienced flares of pain in his feet which affected his walking. The VA examination conducted in December 2002 did not address this symptomatology. The examiner did not address whether the veteran's gait was affected by foot pain. The Board notes that, in addition to Diagnostic Code 5299- 5279 under which the veteran has been granted a 10 percent evaluation which is the schedular maximum, the service- connected foot disability can also be evaluated under Diagnostic Code 5284 for other foot injuries which could conceivably include an alteration in gait due to foot pain. The report of the December 2002 VA examination did not address the presence or lack thereof of any alteration in gait due to the foot pain. The Board finds, therefore, that the December 2002 VA examination is inadequate for ratings purposes and a new examination must be conducted in order to accurately adjudicate this claim. The veteran has claimed entitlement to initial ratings in excess of 10 percent for his service-connected knee disabilities. The only VA examination which was conducted to evaluate the knees for compensation and pension purposes was conducted in December 2002. The examination included the results of range of motion testing. Significantly, the examination report did not include an opinion as to the range of motion of the knees when taking into account pain on use or during flares. The findings from the December 2002 VA examination did not contain sufficient information to be considered fully responsive to the provisions of 38 C.F.R.§§ 4.40 and 4.45 as required by the decision of the Court in DeLuca v. Brown, 8 Vet. App. 202 (1995). The report of that examination does not contain sufficient information with respect to whether there is present such factors as weakened movement, excess fatigability, or incoordination, during flare-ups or with repeated use. The Board finds that the veteran should be afforded another VA examination which provides the required information. The veteran has claimed entitlement to an initial, compensable evaluation for service-connected colonic polyps. At the time of the February 2008 video conference hearing, the veteran alleged that he experienced problems with his bowels which he attributed to his service-connected colonic polyps. A review of the claims file reveals that the veteran has not been afforded a compensation and pension examination to determine the nature, extent and severity of his service- connected colonic polyps. He should be afforded an examination to evaluate the service-connected condition. The veteran has claimed entitlement to an initial compensable evaluation for residuals of a compression fracture of T-12. The only evaluation which was conducted for compensation and pension purposes was the examination which was conducted in December 2002. While this examination recorded the range of motion of the spine, the examiner did not provide any information regarding the extent of limitation of motion of the thoracic spine as a result of pain on use or during flares. This evaluation is required as the service-connected thoracic spine disability can be evaluated under rating criteria for evaluation of thoracic spine injures which evaluates restriction in motion. See Diagnostic Code 5285. Furthermore, the diagnostic criteria for evaluating diseases and injuries of the spine were revised during the pendency of the veteran's claim, effective September 26, 2003. The VA examination report of record simply does not address the presence or absence of all symptoms in the current criteria for rating the veteran's service-connected thoracic spine disability. The veteran has claimed entitlement to a compensable evaluation for a benign, right, mid lung opacity. In a November 2004 statement, he indicated that he experienced difficultly inhaling and exhaling. In February 2008, the veteran testified that he experienced a "flutter" while breathing during cardiovascular work-outs. The Board notes that, at the time of the December 2002 VA respiratory examination, the veteran denied any problems with breathing. Due to the allegation of an increase in symptomatology, the Board finds that a current VA examination is required in order to accurately adjudicate the claim of entitlement to a compensable evaluation for a benign, right, mid lung opacity. The veteran has claimed entitlement to service connection for right hand and wrist disability. A December 2002 VA examination was conducted, in part, for evaluation of the right hand and right wrist claims. Physical examination of the hand and wrist were conducted but only a diagnosis pertaining to the hand was made. That diagnosis was no orthopedic hand pathology noted with clinical and radiographic examination. No diagnosis was made regarding the right wrist. Furthermore, the Board notes that the veteran testified before the undersigned in February 2008 that he was treated by a private physician in approximately January 2007 for problems with his thumb. The veteran further testified that, during the January 2007 treatment, his private physician noted the presence of an old wrist injury upon Magnetic Resonance Imaging examination. The Board finds that an attempt should be made to obtain the private treatment records identified by the veteran at the time of the February 2008 hearing. Furthermore, he should be provided with a VA examination to determine the nature, extent and etiology of any right hand or wrist disability found on examination. The veteran has claimed entitlement to service connection for a cervical spine disability. A VA examination was conducted in December 2002 to evaluate the disability. The examiner noted in the body of the examination report that "the veteran's cervical spine problem is not supported by the C- file." A diagnosis of cervical spine spondylosis without radiculopathy and without spasm was made. It is not apparent to the Board upon what basis the December 2002 examiner determined that the cervical spine disability was not supported by the claims file. A May 1990 service medical record specifically indicates the veteran complained of low back pain and mid back pain which had been present for a week after a hard parachute landing. The Board further notes that the report of the December 2002 VA examination did not provide an opinion as to the etiology of the disability. As noted above, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board finds that there is evidence of an in-service injury to the spine and current evidence of cervical spine disability. The Board further finds that the report of the December 2002 VA examination is inadequate in its failure to address the in-service spine complaints and to provide an actual opinion as to the etiology of the currently diagnosed cervical spine disability. A new VA examination is required in order to supply the required information. The veteran has claimed entitlement to service connection for a lumbar spine disability. A review of the service medical records reveals some complaints of back pain due to parachute jumps. A May 1990 service medical record references complaints of low back pain after a hard parachute landing. There is also current evidence of a current low back disability. A June 2005 VA clinical record includes an impression of small posterior disc bulge at L5-S1. The veteran has not been afforded a VA examination to determine if there is an etiologic link between the active duty complaints and the currently existing low back disability. A VA examination is required in order to accurately adjudicate the claim. A remand is required to correct these deficiencies. Accordingly, the case is REMANDED for the following action: 1. Obtain the names and addresses of all medical care providers who treated the veteran for his right wrist/hand disability since his discharge from active duty. After securing the necessary release, the RO should obtain these records. The Board is particularly interested in obtaining the treatment records dated around January 2007 from Kaiser Permanente which were identified by the veteran at the time of his February 2008 video conference hearing. 2. Schedule the veteran for a VA examination by an appropriately qualified examiner to determine the nature, extent and current severity of the service- connected foot disabilities. The veteran's claims file must reviewed by the examiner in conjunction with the examination, and any indicated studies, should be completed. The examiner should determine if the service-connected foot disabilities can be characterized as a moderate foot injury, a moderately severe foot injury or a severe foot injury. The examiner must explain the rationale for all opinions given. 3. Schedule the veteran for a VA examination by an appropriately qualified examiner to determine the nature, extent and current severity of the service- connected knee disabilities. The veteran's claims file must reviewed by the examiner in conjunction with the examination, and any indicated studies, including specifically range of motion studies, should be completed. Range of motion studies should encompass knee flexion and extension and identify whether any excursion of motion is accompanied by pain. The presence, and, if present, the severity of recurrent subluxation or lateral instability should be noted. The extent of any incoordination, weakened movement and excess fatigability on use should be described, and to the extent possible functional impairment due to such factors should be reported in terms of additional degrees of limitation of motion. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups (if the veteran describes flare-ups), and, if feasible, express this in terms of additional degrees of limitation of motion on repeated use or during flare- ups. 4. Schedule the veteran for a VA examination by an appropriately qualified examiner in order to determine the nature, extent and current severity of the service-connected colonic polyps. The veteran's claims file must reviewed by the examiner in conjunction with the examination, and any indicated studies, should be completed. The examiner must describe the symptomatology which is attributable to the service-connected colonic polyps. 5. Schedule a VA examination by an appropriately qualified examiner to determine the nature, extent and current severity of the veteran's service- connected thoracic spine disability. The veteran's claims file must reviewed by the examiner in conjunction with the examination, and any indicated studies, specifically including ranges of motion, should be completed. a. The examiner should describe the current state of the veteran's thoracic spine, identifying all residuals of the service-connected T-12 compression fracture residuals, noting whether there is ankylosis and, if so, the degree thereof. Range of motion studies should encompass forward flexion, extension, lateral flexion, and identifying whether any excursion of motion accompanied by pain. The extent of any incoordination, weakened movement and excess fatigability on use should be described, and to the extent possible functional impairment due such factors should be reported in terms of additional degrees of limitation of motion. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups (if the veteran describes flare-ups), and, if feasible, express this in terms of additional degrees of limitation of motion on repeated use or during flare- ups. b. The examiner should ascertain whether the veteran has had incapacitating episodes (periods of acute signs and symptoms of intervertebral disc syndrome due to the service-connected T-12 compression fracture residuals, requiring bed rest prescribed by a physician and treatment by a physician) of thoracic disc disease over the past 12 months and, if so, also ascertain the extent of such episodes (in terms of weeks of incapacitation during the past year). c. The examiner should identify neurological symptoms due to the service- connected thoracic spine disability, and describe in detail the nature and extent of such symptoms. The examiner should opine whether the veteran's service- connected thoracic spine disability reflects moderate intervertebral disc syndrome with recurring attacks, severe intervertebral disc syndrome with recurring attacks and intermittent relief, or pronounced intervertebral disc syndrome with little intermittent relief. d. The examiner must determine if the residuals of the compression fracture of T-12 are manifested by any demonstrable deformity of a vertebral body. 6. Schedule the veteran for a VA examination by an appropriately qualified examiner to determine the nature, extent and current severity of the benign, right, mid lung opacity. The veteran's claims file must reviewed by the examiner in conjunction with the examination, and any indicated studies, specifically including pulmonary function testing, should be completed. The examiner must describe all symptomatology which is attributable to the service-connected benign, right, mid lung opacity. 7. Schedule the veteran for a VA examination by an appropriately qualified examiner to determine the nature, extent and etiology of any right hand or wrist disability, cervical spine disability and/or lumbar spine disability found on examination. After reviewing the file and obtaining all relevant history and conducting a physical examination, the examiner should render an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that the veteran currently has a right hand or wrist disability, a cervical spine disability and/or a lumbar spine disability which was incurred in or aggravated by active duty service. In doing so, the examiner must discuss the veteran's documented complaints of back pain in service. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The rationale for the opinions expressed should be stated in a legible report. 8. After the above development has been completed to the extent possible, readjudicate the claims. If any benefit sought on appeal is not granted to the veteran's satisfaction, an appropriate supplemental statement of the case must be issued and the veteran and his representative must have opportunity to respond before the case is returned to the Board. The appellant and his representative have 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). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs