Citation Nr: 1004441 Decision Date: 01/29/10 Archive Date: 02/16/10 DOCKET NO. 08-24 604 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for cervical radiculopathy of the right upper extremity. 2. Entitlement to an initial compensable rating for degenerative arthritis of the lumbar spine. 3. Entitlement to service connection for a left toe condition. 4. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease of the cervical spine. ATTORNEY FOR THE BOARD F. Yankey, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1985 to August 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania and Wilmington, Delaware. The Wilmington RO currently has jurisdiction over the claims. In a rating decision issued in October 2005, the Philadelphia RO granted service connection for right should degenerative joint disease and lumbar spine degenerative joint disease, effective September 1, 2005, and evaluated the disabilities as noncompensable. The RO also denied entitlement to service connection for a left big toe condition. In June 2008, the Wilmington RO issued a rating decision re- characterizing the right shoulder condition as cervical radiculopathy of the right upper extremity, and increasing the initial evaluation to 20 percent effective September 1, 2005. The RO also granted service connection for degenerative joint disease of the cervical spine and hypertension, evaluating each disability as noncompensable. In his August 2008 VA Form 9, in November 2008, the Veteran indicated that he wished to appeal the issues of the proper evaluations for cervical spine degenerative joint disease, cervical spine radiculopathy, and hypertension. The Veteran did not indicate that he wished to appeal the initial rating for the lumbar spine disability or the denial of service connection for a left toe condition. However, because the RO has certified the lumbar spine and toe issues; they are now before the Board. Gonzales-Morales v. Principi, 16 Vet. App. 556 (2003) (holding the Board has jurisdiction over issues certified to it by the RO, regardless of whether a substantive appeal was filed). In July 2009, the RO issued a statement of the case with regard to the issue of entitlement to an initial compensable rating for hypertension. The RO has not certified this issue to the Board, and the Veteran has not submitted a substantive appeal. The Board will not consider this issue further. The issues of entitlement to an initial compensable rating for degenerative arthritis of the lumbar spine and an initial rating in excess of 10 percent for degenerative joint disease of the cervical 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. The Veteran's cervical radiculopathy of the right upper extremity is manifested by no more than mild incomplete paralysis of the upper radicular nerve group; X-ray examinations of the right shoulder have been normal and limitation of motion has not been demonstrated. 2. The Veteran does not have a left toe condition. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for cervical radiculopathy of the right upper extremity are not met. 38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, Diagnostic Code 8510 (2009). 2. The criteria for service connection for a left toe condition are not met. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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, 5126 (West 2002 & Supp. 2009) defined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). The cervical radiculopathy appeal arises from disagreement with the initial rating following the grant of service connection. The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required; and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The United States Court of Appeals for Veterans Claims (Court) has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as an effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128 (2008). Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. With regard to the service connection claim, the VCAA requires that VA inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In an August 2005 letter, issued prior to the initial adjudication of the claims, the RO notified the Veteran of the evidence needed to substantiate his claim for service connection for a left toe condition. The letter satisfied the second and third elements of the Pelegrini duty to notify by informing the Veteran that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them. The Veteran has substantiated his status as a Veteran. He was notified of all elements of the Dingess notice, including the disability-rating and effective-date elements of the claim, by a letter submitted with the June 2008 statement of the case. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). There was a timing deficiency in that the June 2008 letter was sent after the initial adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The timing deficiency was cured by readjudication of the claim in a supplemental statements of the case issued in June 2009. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). The Duty to Assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, and VA and private treatment records. Additionally, the Veteran was provided a VA examination in August 2005 for his claimed left toe condition. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Increased Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2009). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2009). Each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2 (2009). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2009). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Analysis The rating schedule distinguishes between the major (dominant) and minor (non-dominant) extremity. The Veteran is shown by service treatment records to be right-handed, and his disability is accordingly rated under the criteria for the major extremity. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type give for each nerve. When the involvement is wholly sensory, the rating should be for the "mild" or at most "moderate" degree. Ratings shown are for unilateral involvement; when bilateral, combine with application of the bilateral factor. Under DC 8510, a rating of 70 percent is assignable for complete paralysis of the major extremity (all shoulder movements lost or severely affected, hand and wrist movements not affected). A rating of 50 percent is assignable for severe incomplete paralysis of the major extremity. A rating of 40 percent is assignable for moderate incomplete paralysis of the major extremity. A rating of 20 percent is assignable for mild incomplete paralysis of the major extremity. Service treatment records revealed complaints of right shoulder pain and weakness as well as complaints of occasional numbing and tingling in the right shoulder. A December 1997 X-ray of the right shoulder, submitted by the Veteran, revealed an unremarkable right shoulder. On examination in July 2002, the Veteran was noted to have right arm discomfort, likely secondary to spondylotic changes in the cervical spine. MRI dated July 2002 revealed spondylotic spurring at C4-5, C5-6. During a VA examination in August 2005, examination of the right shoulder revealed no swelling, no redness, no warmth and no tenderness. Forward elevation was 0 to 180 degrees; abduction was 0 to 180 degrees, with slight pain in the last 5 degrees; adduction was 0 to 130 degrees; internal rotation was 0 to 90 degrees, with slight pain in the last 10 degrees; and external rotation was 0 to 90 degrees, with no pain. The examiner diagnosed degenerative joint disease of the right shoulder; however, X-rays of the right shoulder taken later that month were normal, with no evidence of fracture, subluxation or calcification. In the October 2005 rating decision, the RO evaluated the disability as right shoulder condition with degenerative joint disease and assigned a noncomepensable evaluation under 38 C.F.R. § 4.71, Diagnostic Code 5201 for limitation of motion of the arm, effective September 1, 2005. The Veteran was afforded another VA examination in January 2008, in response to his appeal. The examiner noted the Veteran's complaints of pain around the right scapular area. Forward flexion was again 0 to 180 degrees; abduction 0 to 180 degrees; and internal/external rotation 0 to 90 degrees. Range of motion did not change on repetitive testing. There was no instability of the shoulder joint; no significant history of flare-ups; and X-rays were again negative. The examiner opined that the Veteran did not have any shoulder pathology and only had mild cervical radiculopathy as a result of a cervical spine condition, with pain radiating into the right scapular area. The RO has granted the 20 percent rating, for cervical radiculopathy, right upper extremity (previously characterized as degenerative joint disease of the right shoulder) under the provisions of Diagnostic Code 8510 (paralysis of upper radicular group, fifth and sixth cervical nerves). The rating schedule provides the following guidance in evaluating the severity of disabilities of peripheral nerves: Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. See nerve involved for diagnostic code number and rating. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123 (2009). Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. See nerve involved for diagnostic code number and rating. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. 38 C.F.R. § 4.124 (2009). When the involvement of a peripheral nerve is wholly sensory, the rating should be for mild, or at most moderate, incomplete paralysis. 38 C.F.R. § 4.124a. Because the RO had previously listed the disability as involving right shoulder disability, and has taken no action to sever service connection for that condition, the Board must consider whether additional compensation is payable on the basis of shoulder disability. See Baughman v. Derwinski, 1 Vet. App. 563 (1991) (when the RO listed a condition as service connected on a rating sheet, it effectively granted service connection and service connection remained in effect, despite re-characterization of the disability, unless service connection was severed in accordance with VA regulations). Notwithstanding that service connection is in effect for a right shoulder disability; the record shows that the shoulder has been normal on examinations with a normal range of motion, normal X-ray studies, and no reports of functional impairment from pain, incoordination, weakness, fatigability or flare ups. See 38 C.F.R. § 4.71, Plate I (2009) (specifying that the normal range of shoulder abduction and flexion is 180 degrees); 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2009) (providing for a compensable rating for arthritis where there is X-ray evidence of arthritis and less than compensable limitation of motion under an applicable diagnostic code), 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2009) (providing a compensable rating for right shoulder limitation of motion where motion is limited to shoulder level); 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202, 5203 (2009) (providing compensable ratings for shoulder ankylosis, dislocations, and nonunion or malunion); 38 C.F.R. §38 C.F.R. § 4.40, 4.45, 4.59 (2009) (requiring that functional factors be considered in rating a disability on the basis of limitation of motion). The only reported abnormality of the right shoulder was noted on the August 2005 examination when it was noted that the Veteran had pain on the last five degrees of motion. Because the Veteran was able to raise his arm to well beyond shoulder level, before the pain began, this finding did not meet the criteria for a compensable evaluation under Diagnostic Code 5201. The Veteran has argued that there is X-ray evidence of arthritis. He points to an X-ray conducted in December 1997, but as he notes in his substantive appeal, this study contains findings only referable to the cervical spine, or neck, and not the shoulder. In fact the shoulder was found to be "unremarkable." A compensable rating could not be awarded on the basis of noncompensable limitation of shoulder motion under Diagnostic Code 5003, because there is no X-ray evidence of arthritis. The Veteran is shown to have complaints of pain which radiates into the right shoulder region; however, muscle strength, sensory testing, and deep tendon reflexes have been normal on examination. There is no evidence of any loss of function of the right upper extremity, i.e. no indication of decreased motor strength, grip strength, coordination or reflexes. The Veteran also reported weakness in the right shoulder during treatment in service but has not reported such weakness currently, nor has weakness been identified during treatment or examination. At most the Veteran's neurologic impairment is wholly sensory and has never been evaluated as more than mild by VA examiners. Under VA regulations such impairment is evaluated as, at most, moderate incomplete paralysis. The 20 percent rating contemplates moderate incomplete paralysis. The criteria for a higher evaluation have not been met at any time since September 1, 2005, and that the claim for a higher initial rating must be denied. In adjudicating this claim the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim that doctrine is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Extra-schedular consideration Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1) (2009). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service- connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). The Veteran's disability, as discussed above, is manifested by symptomatology contemplated by the rating criteria. Hence, referral for consideration of an extraschedular rating is not warranted. Total Rating for Compensation Based on Individual Unemployability (TDIU) The Court has held that TDIU is an element of all claims for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2009). Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2001) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In this case there is no evidence that a service connected disability has caused unemployability, and there has been no allegation or evidence of unemployability. Because there is no evidence of unemployability, further consideration of entitlement to TDIU is not required. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009). "[L]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). 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 opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2009). Analysis The Veteran claims he has numbness in his left great toe. See August 2005 Claim. Besides a notation in 1994 of corns and sores on both feet, service treatment records are negative for any complaints, treatment or diagnosis of problems with the left toe. The relevant post-service medical evidence of record is limited to the report from an August 2005 VA examination. During the examination, the Veteran denied any problems with his left big toe, but reported occasional tingling and numbness in his left middle toe, which was not present at the time of the examination. The examiner noted that the Veteran was unable to correlate the symptoms in his left middle toe with his back pain. On physical examination, both the left great toe and the left middle toe were within normal limits. There were no sensory deficits; range of motion was full and free; and he did have dorsalis pedis pulses in the left foot. X-rays of the left foot were also normal. The Veteran has not otherwise reported symptomatology in the left great toe during the course of this appeal. As noted above, service connection requires a showing of current disability. A current disability is shown if the claimed condition is demonstrated at the time of the claim or while the claim is pending. McClain v. Nicholson, 21 Vet App 319 (2007). While the Veteran is competent to report symptoms of a left toe condition, Palczewski v. Nicholson, 21 Vet App 174 (2007), he has not reported that disability at any time since the current claim, other than the vague symptomatology at the time of his claim. Weighing against that report, is his statement during the VA examination, the absence of a left toe disability on that examination, and the absence of any evidence of a left toe disability elsewhere in the record since discharge from service. Accordingly, the Board must conclude that the preponderance of the evidence is against a finding that there is a current left toe disability. Reasonable doubt does not arise, and the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002). ORDER An initial evaluation in excess of 20 percent for the service-connected cervical radiculopathy of the right upper extremity from September 1, 2005 is denied. Service connection for a left toe condition is denied. REMAND During his most recent VA examination of the lumbar spine in August 2005, the Veteran complained of low back pain, which radiated to his left leg and foot. The examiner noted that on physical examination, range of motion was full and free, but he did not fully address limitation of motion based on functional impairment as specified by the Court in DeLuca v. Brown, 8 Vet. App. 202 (1995). The examiner also did not provide an opinion as to the severity of associated neurological symptoms. Accordingly, the Board finds that a new VA examination and opinion are required. The Board also notes that following the grant of service connection and a 10 percent rating for degenerative joint disease of the cervical spine in a June 2008 rating decision; the Veteran filed a notice of disagreement (NOD), dated in November 2008. The RO has not provided the Veteran with a statement of the case in response to this NOD. Because the NOD placed the issue in appellate status, the matter must be remanded for the issuance of a statement of the case (SOC). See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be issued an SOC on the issue of entitlement to an initial rating in excess of 10 percent for degenerative joint disease of the cervical spine. This issue should be certified to the Board only if the Veteran perfects the appeal with a sufficient substantive appeal. 2. The Veteran should be afforded an examination to determine the current severity of his service-connected lumbar spine disability, including any associated neurological impairment. The claims folder must be made available to and reviewed by the examiner. Complete ranges of lumbar spine motion should be reported in degrees. The examiner should determine whether the lumbar spine disability is manifested by weakened movement, excess fatigability, incoordination, flare-ups or pain. Such inquiry should not be limited to muscles or nerves. These determinations should be expressed in terms of the degree of additional range- of-motion loss due to any weakened movement, excess fatigability, or incoordination. The examiner should specifically identify any evidence of neuropathy due to the service-connected disability, to including reflex changes, characteristic pain, and muscle spasm. Any sensory or motor impairment in the upper extremities due to service-connected disability should be identified. The examiner should provide an opinion with respect to any nerves involved as to whether there is complete paralysis; or mild, moderate, moderately severe, or severe incomplete paralysis. The examiner should assess the frequency and duration of any episodes of intervertebral disc syndrome, and in particular should assess the frequency and duration of any periods during which intervertebral disc syndrome has require bed rest prescribed by a physician. The rationale for all opinions should also be provided. 4. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the RO or AMC should issue a supplemental statement of the case before returning the case to the Board, if otherwise in order. 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. 2009). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs