Citation Nr: 0843622 Decision Date: 12/18/08 Archive Date: 12/23/08 DOCKET NO. 05-08 081 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial schedular rating in excess of 60 percent for chronic low back strain, intervertebral disc protrusion with bilateral radiculopathy 2. Entitlement to a rating in excess of 60 percent for chronic low back strain, intervertebral disc protrusion with bilateral radiculopathy, on an extraschedular basis, pursuant to 38 C.F.R. § 3.321. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. A. Rein, Associate Counsel INTRODUCTION The veteran had active military service from October 1985 to February 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal of an April 2004 rating decision in which the RO granted service connection and assigned an initial 10 percent disability rating for chronic low back strain, intervertebral disc protrusion, effective August 10, 2002. The veteran filed a notice of disagreement (NOD) in September 2004 with the disability rating and the effective date assigned, and the RO issued a statement of the case (SOC) in November 2004. The veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in January 2005. By a November 2006 decision, the RO granted a higher initial 60 percent rating for chronic low back strain, IVDS protrusion, with bilateral radiculopathy, effective from the August 10, 2002 date of service connection. In July 2007, the veteran submitted written correspondence in which he stated that he wished to withdraw from appeal the matter of an earlier effective date for his low back condition. As such, the only issue remaining before the Board is the claim for an initial higher rating, on a schedular and extra-schedular basis, as set forth on the preceding page. In a May 2008 decision, the RO granted a separate, noncompensable rating for radiculopathy of the bilateral lower extremities, effective July 27, 2007, secondary to the veteran's service-connected chronic low back strain, intervertebral disc protrusion. As the claim herein decided involves a request for a higher initial rating following the grant of service connection, the Board has characterized the matter in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disabilities). Moreover, for reasons explained in more detail below, the Board notes that the appeal encompasses questions of higher ratings on both a schedular and extra- schedular basis; hence, the Board has recharacterized the appeal as encompassing the two matters set forth on the title page. The Board's decision on the claim for an initial schedular rating in excess of 60 percent for chronic low back strain, intervertebral disc protrusion with bilateral radiculopathy is set forth below. The matter of a higher rating for the low back disability on an extra-schedular basis is addressed in the remand following the order; this matter is being remanded to RO via the AMC, in Washington, DC. VA will notify the veteran when further action, on his part, is required. FINDING OF FACT Since the August 10, 2002 effective date of the grant of service connection, there is no medical evidence that the veteran's disability involves a residual of a fractured vertebra, or any ankylosis. CONCLUSION OF LAW The criteria for a rating in excess of 60 percent for chronic low back strain, intervertebral disc protrusion, with radiculopathy are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.49, 4.71, 4.71a, Diagnostic Code 5293 (as in effect prior to September 23, 2002); and Diagnostic Code 5293 (as in effect since September 23, 2002); General Rating Formula for renumbered Diagnostic Codes 5235-5243 and Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (as in effect since September 26, 2003). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2007) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353- 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in the claimant's possession. In claims for increase ratings, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, an October 2007 post-rating letter provided notice to the veteran regarding what information and evidence was needed to substantiate his claim for increased rating for low back disability, as well as what information and evidence must be submitted by the veteran, what information and evidence would be obtained by VA, and the need for the veteran to advise VA of and to submit any further evidence that is relevant to the claim. The letter also provided the veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. After issuance of the October 2007 letter, and opportunity for the veteran to respond, the July 2008 supplemental SOC (SSOC) reflects readjudication of the claim. Hence, the veteran is not shown to be prejudiced by the timing of the latter notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters on appeal. Pertinent medical evidence associated with the claims file consists of the veteran's VA and private treatment records, and the reports of VA examinations conducted in June 2003, June 2005, August 2006, and April 2008. Also of record are various written statements provided by the veteran, and by his representative, on his behalf. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the veteran has been notified and made aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter on appeal, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error and affirming that the provision of adequate notice followed by a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which assigns ratings based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155;38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is entitlement to a higher initial rating since the grant of service connection, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson, 12 Vet. App. at 126. The veteran's service connected low back disability is assigned an initial 60 percent rating, pursuant to Diagnostic Code 5293, for intervertebral disc syndrome (IVDS). Disabilities of the spine are rated pursuant to 38 C.F.R. § 4.71a. As addressed in more detail below, the rating criteria for IVDS changed effective September 23, 2002, and the rating criteria for all disabilities of the spine changed effective September 26, 2003. As there is no indication that the revised criteria are intended to have a retroactive effect, the Board has the duty to adjudicate the claim only under the former criteria for any period prior to the effective date of the new diagnostic codes, and to consider the revised criteria for the period beginning on the effective date of the new provisions. See Wanner v. Principi, 17 Vet. App. 4, 9 (2003); DeSouza v. Gober, 10 Vet. App. 461, 467 (1997). See also VAOPGCPREC 3- 2000 (2000) and 7-2003 (2003). In this case, the RO has considered the claim under both the former and revised applicable criteria, and has given the veteran notice of both criteria in the November 2004 SOC. Hence, there is no due process bar to the Board also considering the claim in light of the former and revised applicable rating criteria. Under the former and revised criteria, the Board points out that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which a claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the Diagnostic Codes predicated on limitation of motion (see Johnson v. Brown, 9 Vet. App. 7 (1996)). A. Period prior to September 23, 2002 Prior to September 23, 2002, IVDS was evaluated under Diagnostic Code 5293. Under this diagnostic code, a maximum 60 percent rating was warranted for pronounced IVDS, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, an absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, with little intermittent relief. See 38 C.F.R. § 4.71a, Diagnostic Code 5293 (1999-2002). Higher, maximum ratings of 100 percent were available either under Diagnostic Code 5285 for residuals of fracture of the vertebra with cord involvement, bedridden, or requiring long leg braces or under Diagnostic Code 5286 for unfavorable ankylosis (complete bony fixation) of the spine, with marked deformity and involvement of major joints (Marie-Strumpell type) or without other joint involvement (Bechterew type). See 38 C.F.R. § 4.71a, Diagnostic Codes 5285 and 5286 (1999- 2002). As these diagnostic codes are not predicated on limitation of motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 are not applicable. Considering the pertinent evidence in light of the above criteria, the Board finds that the evidence provides no basis for more than the currently assigned 60 percent rating under former Diagnostic Code 5293 for the period prior to September 23, 2002. Foreign medical records, translated into English, reflect that the veteran was first seen in May 2001 for diagnoses of iliosacral joint block, right with pseudoradicular complaints. The Board notes that there is little medical evidence of record during this time period with which to rate the veteran's low back disability. However, it is clear that a 60 percent rating is the maximum rating allowed using Diagnostic Code 5293. The Board notes that the veteran's disability does not involve a residual of a fractured vertebra, or any ankylosis; therefore, former Diagnostic Codes 5285 or 5286 (the only diagnostic codes then providing for assignment of more that a 60 percent rating for disabilities of the spine), were not applicable. Therefore, a rating in excess of 60 percent, for the period prior to September 23, 2002, is not warranted. B. Period from September 23, 2002 through September 25, 2003 Effective September 23, 2002, IVDS (still rated under Diagnostic Code 5293) was to be evaluated by one of two alternative methods: on the basis of total duration of incapacitating episodes over the previous 12 months, or, alternatively, by combining under 38 C.F.R. § 4.25 separate ratings for its chronic orthopedic and neurological manifestations along with evaluations for all other disabilities, whichever method resulted in the higher rating. For purposes of evaluation under former Diagnostic Code 5293, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician, and chronic orthopedic and neurological manifestations mean orthopedic and neurological signs and symptoms resulting from IVDS that are present constantly, or nearly so. 38 C.F.R. § 4.71a, Diagnostic Code 5293, Note (1) (2003). A June 2003 VA examination report reflects that the veteran complained of lumbar pain, with radiation into both legs. The examiner noted that the veteran's gait was free and fluent, without problems. On examination, the veteran had pressure pain, L4-S1, and light muscle tone increase in paralumbar musculature on both sides. Active forward flexion was to 120 degrees, extension to 20 degrees. MRI of the lumbar spine indicated IVDS protrusion, L4-S1. The diagnosis was degenerative lower lumbar spine, hyperlordotic lumbar spine. Thus, the Board notes that during this time period, there is also little medical evidence of record with which to rate the veteran's low back disability. However, it is clear that during this time period, the medical evidence does not show a fractured vertebrae or ankylosis of the spine. Nor does the medical evidence document that the veteran had any qualifying incapacitating episodes due to lumbar disc disease during the twelve-month period, or that he had any separately ratable neurological manifestations to be combined with the orthopedic manifestations, to warrant a higher rating. Hence, a 60 percent rating is the maximum rating allowed using Diagnostic Code 5293. C. Period since September 26, 2003 Effective September 26, 2003, Diagnostic Code 5293 for IVDS was renumbered as Diagnostic Code 5243. However, the criteria for rating all spine disabilities, to include IVDS, are now set forth in a General Rating Formula for Diseases and Injuries of the Spine. The revised criteria provide that IVDS is rated under the "incapacitating episode" methodology discussed above, or alternatively, under the General Rating Formula. The formula provides that a 50 percent rating is assignable for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assignable for unfavorable ankylosis of the entire spine. These criteria are applied with and without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2008). A June 2005 VA examination report reflects that the veteran reported he had difficulty dressing in the morning, was unable to sit for more than 20 minutes, unable to drive for more than 15 minutes and was unable to lift more than 10 pounds. He worked as an electronics technician, mostly doing paperwork at the present time. On examination, the veteran walked with a slight limp. He had increased lumbar lordosis with forward flexion of about 20 degrees with no spasm and no tenderness. He had right and left lateral bending of 0 to 20 degrees. He had extension from -20 to 0, flexion from 20 to 30 degrees. He had right rotation of 0 to 40 degrees, left rotation 0 to 30 degrees with pain throughout all ranges of motion. He had negative straight leg raising, bilaterally, while sitting, positive bilaterally at 30 degrees while supine. The examiner noted that despite the veteran's report that the pain was very severe, he did not break a sweat, no did his pulse rate go up. There was no evidence of atrophy in the lower extremities and he had normal sensation throughout the lower extremities. The examiner's impression was that the veteran had lumbar strain with significant evidence of symptom magnification. In an addendum, the examiner noted that the veteran did not have pain on range of motion or flare ups on any of the above joints, except as noted, and not additional limitations by pain, fatigue, weakness or lack of endurance following repetitive use. X- ray findings were mild spondylosis of the lumbar spine. A November 2005 private medical record notes that physical examination of the veteran revealed tenderness over the low lumbar spine and adjacent lumbar paraspinal muscles. Flexibility of the low back is at least mildly limited. Clinically in the lower extremities there is not weakness or other evidence neurologic deficit. X-rays indicate degenerative spondylosis changes at L5-S1 primarily, but also L4-5. An MRI demonstrated disc abnormalities at L4-5 and L5- S1, and at both levels there was significant degeneration of the disc evident. At both levels there was also disc protrusion present. The combination of these factors with spondylosis changes that is also present at these levels is producing relative foraminal stenosis although no severe stenosis was present. The doctor stated that with regards to bed rest, it is likely that the veteran will need periods of time intermittently through the year to be off work, and potentially to include bed rest. In an April 2006 private medical record, C.N. Bash, M.D., stated that he reviewed the veteran's medical records and opined that his spine problems are of a serious nature and he needs extended periods of bed rest. Examination revealed patchy pain and light touch sensation both lower extremities, atrophy right lower extremity, and an inability to stand from the floor without the aid of furniture. Flexion to 15 degrees and extension to 5 degrees, lateral bending to 15 degrees, bilaterally. The doctor notes that in his normal standing position, the veteran is about 5 degrees flexed due to pain. He had a positive straight leg raise. The doctor furthered that the veteran needs extended periods of bed rest, on the order of 1 to 2 weeks every month, to allow for relief of his spinal/foraminal stenosis pain and to allow his sciatic nerves time for potential compression free regeneration. An August 2006 VA examination report reflects that a physical examination revealed flattening and tenderness of the veteran's thoracolumbar spine with no spasm. He had right and left lateral bending of 0 to 15 degrees, extension of 0 from a neutral position of forward flexion of 20. He had forward flexion from 20 to 30 degrees. He had right and left rotation of 0 to 20 degrees with pain on all ranges of motion. He did not sweat during examination and in fact, spontaneously squats during the evaluation to pick up his pants. He had normal sensation with 5/5 motor strength throughout the lower extremities. He had positive straight leg raising bilaterally while sitting. He had no evidence of atrophy of the lower extremities. He had no DeLuca criteria on examination. The examiner remarked that this examination was markedly different than the one of April 2006 in that he has normal reflexes, normal sensation and no evidence of atrophy. The impression was lumbar IVDS protrusion with spondylosis. A September 2006 VA EMG report revealed an impression that there was no electrodiagnostic evidence of sensory or motor peripheral neuropathy and that there was very mild, minimal acute NR irritation at the right S1 level consistent with S1 radiculopathy, but all other levels are completely normal. An April 2008 VA examination report reflects that the veteran complained of constant pain in his back that radiates to his lower extremities. He stated he had 30 days of physician prescribed bed rest in the last year. He works full-time as an electronic technician and missed about 30 days of work in the last year due to his back pain and sciatica. He reported flares one time a month, lasting for five days. On physical examination, the veteran walked with a limp, his lumbar spine curvature is lordotic. There was no tenderness to palpation on the spine or spasms. Range of motion of the lumbar spine was the veteran could right and left laterally flex to 30 degrees with pain, from 20 to 30, no DeLuca findings. He could extend to 20 degrees with pain from 10 to 20, no DeLuca. He could forward flex to 90 with pain from 40 to 90, no DeLuca, and right and left laterally rotate to 45, with pain at 45, no DeLuca. He had positive pain in his back on straight leg extensions, bilaterally, Lower extremity strength was 5/5. Sensation was normal to lower extremities. No pain on range of motion or flare ups on any of the joints and all above joint did not have additional limitation by pain, fatigue, weakness or lack of endurance following repetitive use. The impression was chronic lumbar strain with radiculopathy. X-ray findings were minimal spondylosis L5-S1, not significantly changed from prior. Given symptoms were radicular in nature. Since September 26, 2003, the medical evidence described above neither reflects credible evidence of incapacitating episodes, nor any ankylosis of the entire spine (which is required for a rating in excess of 60 percent under the General Rating Formula). The Board also points out that, under Note (1) of revised Diagnostic Codes 5235-5243, VA must continue to determine whether assigning separate ratings under the orthopedic and neurological rating criteria would result in a higher schedular rating for the veteran's service-connected low back disability. The Board notes that the veteran was granted a separate noncompensable disability rating for radiculopathy of the bilateral lower extremities in a May 2008 rating decision. In addition, however, as he is rated as 60 percent disabling using the rating criteria in effect prior to September 23, 2002, such a rating already considers any neurological impairment and orthopedic impairment. Also, the veteran's orthopedic disability alone would only warrant a 40 percent rating using the amended criteria, as he is not shown to have ankylosis of the lumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Further, assigning separate ratings under orthopedic and neurological rating criteria would not yield a higher rating than his current 60 percent rating. D. All Periods The Board also points out that, regardless of whether the former or revised criteria are considered, when evaluating musculoskeletal disabilities, regardless of the rating criteria in effect, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (1999-2008); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion (see Johnson v. Brown, 9 Vet. App. 7 (1996)), to include IVDS under the current rating criteria (see VAOPGCPREC 36-97, 63 Fed. Reg. 31,262 (1998)). The Board has considered the veteran's complaints of pain in evaluating the disability under consideration. However, the Board finds that there is no medical evidence to support a finding that the veteran's pain is so disabling as to effectively result in ankylosis, which is required for the next higher rating under the rating criteria in effect during any time period in question. For all the foregoing reasons, the Board finds that there is no basis for staged rating of the lumbar spine disability, pursuant to Fenderson, and that an initial schedular rating in excess of 60 percent must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against assignment of an initial higher rating, that doctrine is not for application. See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2008); 38 C.F.R. § 3.102 (2008); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER The claim for an initial schedular rating in excess of 60 percent for chronic low back strain, intervertebral disc protrusion with bilateral radiculopathy is denied. REMAND In a September 2008 written statement, the veteran's representative asserted that the veteran is entitled to the evaluation of his low back disability on an extra-schedular basis, pursuant to 38 C.F.R. § 3.321(b)(1) (2008)(authorizing the assignment of an extra-schedular rating, pursuant to specially prescribed procedures, where the disability is so exceptional or unusual-due to such factors as marked interference with employment or frequent periods of hospitalization-to render the regular schedular criteria for rating the disability inadequate). The Board notes that, while the above decision is based upon application of pertinent provisions of VA's rating schedule, the record reflects that the RO has not considered whether the procedures are invoked for assignment of any higher rating, on an extra-schedular basis, for the veteran's chronic low back strain, IVDS protrusion, with bilateral radiculopathy. Neither the rating decision, the SOC, nor any subsequent SSOC cited to or discusses 38 C.F.R. § 3.321 or the possibility of a higher initial rating based on extra-schedular considerations. To avoid any prejudice to the veteran by the Board's consideration of this matter, remand for such RO consideration, in the first instance, is warranted. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Prior to adjudicating the question of a higher rating during the period in question, on an extra-schedular basis, the RO should give the veteran an opportunity to present information and evidence pertinent to this claim, notifying him that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2008) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year VCAA notice period). The RO should explain the respective responsibilities of VA and the veteran in obtaining Federal and non-Federal evidence, request that the veteran submit all evidence in his possession, and ensure that its letter to him meets the requirements of all applicable precedent, including the decision in Dingess/Hartman (noted above), as appropriate. After providing the appropriate notice, the RO should attempt to obtain any additional evidence for which the veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2008). The actions identified herein are consistent with the duties imposed by the VCAA. However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim for an initial rating in excess of 60 percent for chronic low back strain, intervertebral disc protrusion with bilateral radiculopathy, on an extra-schedular basis. Accordingly, this matter is REMANDED to the RO, via the AMC, for the following action: 1. The RO should send to the veteran a letter requesting that the veteran provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim for an initial rating in excess of 60 percent for chronic low back strain, intervertebral disc protrusion with bilateral radiculopathy on an extra- schedular basis. In doing so, the RO should provide notice of 38 C.F.R. § 3.321 in explaining what is needed to substantiate the claim. The RO should explain to the veteran the type of evidence that is his ultimate responsibility to submit. The RO's letter should clearly explain to the veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the veteran responds, the RO should assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. To help avoid future remand, the RO must ensure that all requested action has been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After completing the requested action, and any additional notification and development deemed warranted, the RO should adjudicate the claim for an initial rating in excess of 60 percent for chronic low back strain, intervertebral disc protrusion with bilateral radiculopathy on an extra- schedular basis, pursuant to 38 C.F.R. § 3.321. In determining whether staged rating, pursuant to Fenderson (cited to above) is warranted, the RO should specifically address whether the procedures for assignment of a higher rating on an extra-schedular basis have been invoked at any point since the effective date of the grant of service connection. 5. If the claim is denied, the RO must furnish to the veteran and his representative an appropriate SSOC that includes citation to the additional legal authority considered (38 C.F.R. § 3.321), along with clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The 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. 2008). ________________________ JOHN Z. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs