Citation Nr: 1124698 Decision Date: 06/29/11 Archive Date: 07/06/11 DOCKET NO. 05-28 388A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a compensable evaluation for left ear hearing loss. 2. Entitlement to a compensable evaluation for residuals of a fracture to the right index finger. 3. Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran had active military service from December 1972 to May 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. By way of the January 2004 decision the RO denied service connection for a low back disability as well as compensable ratings for left ear hearing loss and residuals of a fracture to the right index finger. In September 2009 the Board remanded all the issues on appeal for further development, specifically to obtain VA treatment records and for the Veteran to be afforded VA examinations. The Veteran was afforded VA examinations in March 2010 for his back disorder, his left ear hearing loss, and his residuals of a fracture to the right index finger. The Board finds that for the matters involving a compensable rating for left ear hearing loss and residuals of a fracture to the right index finger, all requested development has been completed. As the requested development has been completed for these issues, no further action to ensure compliance with the remand directive is required. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The issue of entitlement to service connection for a low back disability is remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the issues herein decided has been accomplished. 2. The service-connected left ear hearing loss disability currently is shown to be manifested at a level I hearing acuity and the nonservice-connected right ear hearing loss currently is shown to be measured at an acuity level of I. 3. The residuals of a fracture to the right index finger are manifested by pain; there is no evidence that such residuals cause extension to be limited by more than 30 degrees or result in a gap of one inch or more between the fingertip and the proximal crease of the palm on flexion. CONCLUSIONS OF LAW 1. The criteria for the assignment of a compensable rating for the service-connected left ear hearing loss are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.85 including Tables VI, VII and Diagnostic Code 6100 (2010). 2. The criteria for a compensable rating for residuals of a fracture to the right index finger have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1-4.7, 4.21, 4.71a, Diagnostic Code 5229 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record that is necessary to substantiate the claim. The Veteran should be informed as to what portion of the information and evidence VA will seek to provide, and what portion of such the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, legally adequate notice was provided to the Veteran by correspondences in March 2003 and December 2004. These letters detailed the elements of an increased rating claim, described the evidence and information necessary to substantiate the claim, and set forth the respective responsibilities of VA and the Veteran in obtaining such. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (hereinafter Court) held that a claimant must be informed of the rating formulae for all possible scheduler ratings for an applicable rating criteria. The Board finds that this was accomplished in the August 2005 Statement of the Case (SOC). Dingess also held that VA notice must include information regarding the effective date that may be assigned; however, though the Veteran was not given notice the Board finds that the Veteran is not prejudiced since the decision herein below denies compensable ratings for his service-connected disabilities. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished with respect to the issue decided here, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained service treatment records and VA treatment records. The RO also afforded the Veteran VA examinations in September 2003 and March 2010. The Board finds that these examinations are adequate because the medical findings are stated in terms conforming to the applicable rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). The Board notes that in the April 2011 Brief, the Veteran's representative asserted that another remand was warranted since the September 2009 remand orders were not completed; however, after a careful review of the arguments the Board finds that the September 2009 remand orders were complied with. The Veteran's representative asserts that the issue of a compensable rating for left ear hearing loss must be remanded since the May 2006 audiogram was not interpreted as directed by the September 2009 Board remand; however, the Board finds that when the RO obtained all of the Veteran's VA treatment records a May 2006 audiology consult was also obtained. This May 2006 audiology consult was done on the same day and by the same audiologist as the May 2006 audiogram and in the audiology consult the VA audiologist diagnosed the Veteran with sloping to mild sensorineural hearing loss. Therefore, the Board finds that another remand is not warranted since all records pertaining to the audiology consult in question are associated with the claims file and were reviewed at the time of the March 2010 VA examination. In addition, the Veteran's representative asserts that another remand is warranted because the March 2010 VA examination for the Veteran's right index finger did not properly address the factors for rating orthopedic disabilities discussed in the case of DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board finds that the March 2010 VA examination did state that there was no additional limitation of motion. The Board finally notes that the September 2009 remand directives stated that the RO should schedule the Veteran for VA examinations after the receipt of any additional medical records requested. The Board finds that the Veteran was afforded his VA examinations in March 2010 but the Veteran's VA treatment records were not obtained until December 2010. After a careful review of these recently received VA treatment records, the Board finds that there is no evidence that would have changed the VA examinations. Therefore, the Board finds that the Veteran is not prejudiced from VA now deciding the issues addressed in this decision. Remands that would only result in imposing additional burdens on VA, with no benefit flowing to the claimant, are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). More importantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, that there exists any additional outstanding evidence that is necessary for a fair adjudication of the claims herein decided that has not been obtained. The Veteran was advised of his right to a hearing before the RO and/or before the Board, but he waived that right. No further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of these claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Under these circumstances, the Board finds that the Veteran is not prejudiced by the Board proceeding, at this juncture, with an appellate decision on the claims herein decided. II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. When considering functional impairment caused by a service-connected disorder, evaluations should be based on an assessment of the lack of usefulness, and adjudicators should consider the effects of the disabilities upon the person's ordinary activity. 38 C.F.R. § 4.10. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath, 1 Vet. App. at 594. However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Left Ear Hearing Loss The Veteran is not service-connected for right ear hearing loss. Left ear hearing loss has been rated as noncompensable under 38 C.F.R. § 4.85, Diagnostic Code 6100 since May 11, 1984. By way of the January 2004 rating decision, the RO continued the Veteran's noncompensable rating for left ear hearing loss. After a careful review of the Veteran's claims file the Board finds that the preponderance of the evidence is against a compensable rating for left ear hearing loss. Evaluations of defective hearing are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345 (1993). Hearing impairment is determined by averaging the hearing impairment at each of the four designated frequencies (1000, 2000, 3000, and 4000 Hertz). This results in a Puretone Threshold Average for each ear. The Puretone Threshold Average is charted, in conjunction with the Speech Discrimination Percentage for that ear, in Table VI of 38 C.F.R. § 4.85. This results in a score, expressed as a Roman numeral, for each ear. The Roman numeral scores for both ears are than charted in Table VII of 38 C.F.R. § 4.85, and the intersection of the scores provides the percentage of disability. Effective on June 10, 1999, there are two provisions for evaluating veterans with exceptional patterns of hearing impairment that cannot always be accurately assessed under the standards of 38 C.F.R. § 4.85 as discussed hereinabove. These provisions apply when the puretone threshold at each of the four specified frequencies is 55 decibels or more, or when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. As noted, the Veteran's hearing loss does not fit either of these situations, so his hearing loss is calculated under Tables VI and VII. In March 2010, the most recent VA audiological evaluation of record, the Veteran's audiometer scores were as follows: HERTZ 500 1000 2000 3000 4000 AVG. LEFT N/A 15 25 20 20 20 Speech recognition score for the left ear was 96 percent. The examiner's impression was that the Veteran had mild frequency hearing loss from 6000 Hertz to 8000 Hertz on the left side. Applying the determinations of the March 2010 examination to Table VI, the Veteran's left ear (puretone average 20 and speech discrimination 96 percent) is a Level I hearing loss. The Board notes that under 38 C.F.R. § 4.85(f) if impaired hearing is service-connected in only one ear then the non-service-connected ear will be assigned a Level I hearing loss and therefore, the Veteran's right ear is assigned a level I hearing loss. When a Level I and Level I hearing loss is charted in Table VII, the result is a zero percent (noncompensable) rating. In addition to the March 2010 VA examination, it was noted at the May 2006 VA audiology consult that the Veteran had mild sensorineural hearing loss at 250 Hertz that rose to normal levels at 500 Hertz to 1000 Hertz. He then had sloping to mild sensorineural hearing loss from 2000 Hertz to 8000 Hertz and his word discrimination was found to be excellent. A May 2007 VA audiology consult diagnosed the Veteran with borderline normal hearing and the March 2008 VA audiology consult stated that the Veteran had no significant changes in hearing sensitivity since his previous audiograms and diagnosed the Veteran with normal to mild sensorineural hearing loss. Finally, at the December 2009 VA audiology consult he was diagnosed with normal hearing sensitivity through 4000 Hertz and mild sensorineural hearing loss from 6000 Hertz to 8000 Hertz. Therefore, the Board accordingly finds that a compensable rating for his service-connected left ear hearing loss is not assignable. In addition to the Veteran not warranting a compensable rating under 38 C.F.R. § 4.85, Diagnostic Code 6100, the Board finds that the Veteran's left ear hearing loss does not currently meet the VA standards for a hearing loss disability. The Board notes that for the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or, when the auditory thresholds for at least three of those frequencies are 26 decibels or greater; or, when speech recognition scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385. Even though the Veteran does not currently meet the VA standards for what constitutes a hearing loss disability, the longstanding award of service connection for left ear hearing loss will not be disturbed. The Board has considered whether an extraschedular rating could be employed in this instance. In exceptional cases, where the evaluations provided by the rating schedule are found to be inadequate, an extraschedular evaluation may be assigned commensurate with the veteran's average earning impairment due to the service-connected disorder. Fisher v. Principi, 4 Vet. App. 57, 60 (1993). The criteria for extraschedular evaluation are that there is a marked interference with employment, or frequent periods of hospitalization, rendering impractical the application of the regular rating schedule. 38 C.F.R. § 3.321(b); Fanning v. Brown, 4 Vet App. 225, 229 (1993). The file does not show, and the Veteran has not alleged, that the criteria for extraschedular rating apply to the service-connected left ear hearing loss. In addition, the Board notes that at the Veteran's VA audiology consults his left ear hearing loss was found to not warrant hearing aids. In addition, it was noted at the March 2010 VA examination that his left ear hearing loss had no significant effects on his occupation. Therefore, the Board finds that an extraschedular rating is not warranted. In sum, the Board finds that the preponderance of the evidence is against a compensable rating for the Veteran's left ear hearing loss since his hearing loss has been diagnosed as normal to mild sensorineural hearing loss. Therefore, a compensable rating for left ear hearing loss is not warranted. Residuals of a Fracture to the Right Index Finger Service connection has been in effect for residuals of a right index finger fracture since May 1984. The disability has been rated as noncompensable under 38 C.F.R. § 4.71a, Diagnostic 5229 for two decades. By way of the January 2004 rating decision, the RO continued the Veteran's noncompensable rating for his residuals of a fracture to the right index finger. Under Diagnostic Code 5229 (pertaining to limitation of motion of the index finger or of the long finger), a noncompensable (0 percent) evaluation is warranted for limitation of motion of the index finger or the long finger with a gap of less than one inch (2.5 centimeters) between the fingertip and the proximal transverse crease of the palm of the hand, with the finger flexed to the extent possible and extension is limited by no more than 30 degrees. An evaluation of 10 percent under Diagnostic Code 5229 requires limitation of motion of the index finger or of the long finger with a gap of one inch (2.5 centimeters) or more between the fingertip and the proximal transverse crease of the palm of the hand, with the finger flexed to the extent possible and extension is limited by no more than 30 degrees. The Court has held that functional loss, supported by adequate pathology and evidenced by visible behavior of the Veteran undertaking the motion, is recognized as resulting in disability. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.10, 4.40, 4.45. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. In order for the Veteran's right finger fracture residuals to warrant a compensable rating, there needs to be evidence of limitation of motion of the index finger or of the long finger with a gap of one inch (2.5 centimeters) or more between the fingertip and the proximal transverse crease of the palm of the hand, with the finger flexed to the extent possible and extension is limited by no more than 30 degrees. After a careful review of the Veteran's claims file, however, the Board finds that the preponderance of the evidence is against a compensable rating for residuals of a fracture to the right index finger. At the Veteran's September 2003 VA examination he reported that his right index finger was asymptomatic. The VA examiner noted that physical examination of the right index finger revealed full range of motion and no deformity or any weakness in the grip. The VA examiner concluded that the Veteran had a normal diagnosis and normal examination of the index finger. At the Veteran's March 2010 VA examination it was noted that the Veteran did not have an overall decrease in hand strength or dexterity. On examination the Veteran's range of motion was normal for extension of his distal interphalangeal (DIP) joint, proximal interphalangeal (PIP) joint, and metacarpophalangeal (MP) joint. There was no gap between the Veteran's index finger and proximal transverse crease of the hand on the maximal flexion of the finger. After repetitive motion there was objective evidence of pain; however, there no additional or new limitation of motion. It was noted that his index finger of the right hand had flare-ups at the distal interphalangeal joint. The precipitating factors were twisting, pinching, and grabbing with his dominant right hand. The frequency of the flare-ups was reported as weekly and lasted for three to seven days and they were alleviated by rest and use of NSAIDS. The Veteran reported that the severity of his flare-ups were moderate and that during the flare-ups he had more problems utilizing his right index finger for work related tasks. After a careful review of the Veteran's VA treatment records and the September 2003 and March 2010 VA examinations the Board finds that the residuals of the Veteran's right index finger fracture do not warrant a compensable rating. In order for these residuals to warrant a compensable rating, there must be evidence of limitation of motion of the index finger or of the long finger, with a gap of one inch (2.5 centimeters) or more between the fingertip and the proximal transverse crease of the palm of the hand, with the finger flexed to the extent possible, and extension is limited by no more than 30 degrees. Here however, the evidence of record shows that the Veteran's right index finger has no limitation of motion. Therefore, a compensable rating is not warranted. The Veteran's representative asserts that the disability due to residuals of a finger fracture warrant a separate rating under DeLuca. The Board does not agree. After a careful review of the Veteran's claims file, the Board finds that the symptoms are relatively minor. The Veteran's disability produces only pain after repetitive motion. There is no evidence of additional limitation of motion as a result of weakness, fatigue, or incoordination. Therefore, the Board finds that the Veteran does not warrant a separate rating under DeLuca. As noted above, in exceptional cases where the evaluations provided by the rating schedule are found to be inadequate, an extraschedular evaluation may be assigned commensurate with the veteran's average earning impairment due to the service-connected disorder. Fisher v. Principi, 4 Vet. App. 57, 60 (1993). The criteria for extraschedular evaluation are that there is a marked interference with employment, or frequent periods of hospitalization, rendering impractical the application of the regular rating schedule. 38 C.F.R. § 3.321(b); Fanning v. Brown, 4 Vet App. 225, 229 (1993). While the finger disability causes some interference with employment, the Board finds, as discussed below, that any such interference is far short of a level that constitutes "marked" interference sufficient to render impractical the application of the regular rating schedule. At the March 2010 VA examination, the Veteran reported that he was a chef at the Miami VA and that he lost one week of work in the previous 12 month period as a result of a flare-up of pain in the right distal index finger and as a result of low back pain. The Board does not find the loss of one week of work over a year's span to constitute "marked" interference with employment. Additionally, the Board notes that the Veteran is currently not service-connected for low back pain; therefore, residuals of that disability (including work days lost due to such) cannot be taken into consideration in deciding a claim for an extraschedular rating. The March 2010 VA examiner stated that the finger disability resulted in "significant effects" on the Veteran's usual occupation as a chef. The VA examiner stated that the Veteran had problems with lifting and carrying. He also had pain with pinching, twisting, and probing while utilizing his right index finger; however, the VA examiner stated further on that he would have to resort to mere speculation as to changes in range of motion during flare-ups at home and at work. He also stated that the Veteran had increased absenteeism. While these effects are by no means insignificant, they are not so severe as to cause "marked" interference with employment. The Veteran is able to perform his job, and he has lost no more than a week due to finger (and back) disability over the past year. The Board has also looked to how the VA examiner described the impact of the Veteran's finger disability on his usual daily activities. While the finger disability effects his daily activities, the examiner has indicated that the degree of impact is only "mild" or "moderate." The VA examiner described the effects of the Veteran's finger disability on his usual daily activities as only being "moderate" with regard to exercise and sports, and only "mild" with regard to each of the following: chores, shopping, recreation, feeding, bathing, dressing, toileting, and grooming. While the VA examiner stated that the Veteran had increased absenteeism due to the finger disability, the Veteran only reported one week missed of work in the past 12 months and, as described above, he related that lost week to both his right index finger and his non-service-connected low back disability. In addition, though the VA examiner stated that the Veteran had some difficulties with using the finger to perform his work functions, there is no indication in the record that the finger disability has caused him to lose his job or otherwise prevent him from completing his chef duties and holding his job. In addition, the Board finds that in reviewing the VA examiner's statements regarding "significant" impact on work functions in conjunction with the examiner's statements regarding "mild" or "moderate" impact on the activities of daily living, there is no evidence showing that the service-connected finger disability causes marked interference with employment, or frequent periods of hospitalization, rendering impractical the application of the regular rating schedule. See 38 C.F.R. § 3.321(b). The Board finds that the residuals of a fracture to the right index finger properly receive a noncompensable rating. The VA examiner's statements in conjunction with the Veteran's statements and the evidence on file, simply do not show that the Veteran's residuals of a fracture to the right index finger are manifested by an exceptional or unusual circumstances indicating the rating schedule may be inadequate to compensate for average impairment of earning capacity due to the disability. The condition does not cause marked interference with employment, or frequent periods of hospitalization, rendering impractical the application of the regular rating schedule. 38 C.F.R. § 3.321(b). Accordingly, finds that an extraschedular rating is not warranted. In sum, the Board finds that the preponderance of evidence is against the Veteran's claim for a compensable rating for residuals of a fracture to the right index finger. Without evidence of limitation of motion of the index finger or of the long finger with a gap of one inch (2.5 centimeters) or more between the fingertip and the proximal transverse crease of the palm of the hand, with the finger flexed to the extent possible and extension is limited by no more than 30 degrees a compensable rating is not warranted. ORDER A compensable rating for left ear hearing loss is denied. A compensable rating for residuals of a fracture to the right index finger is denied. REMAND Further development is warranted for the issue of entitlement to service connection for a low back disability. In accordance with the September 2009 VA remand, the Veteran was afforded a VA examination in March 2010. The purpose of this examination was to determine the nature and likely etiology of the Veteran's low back disability. The March 2010 VA examiner diagnosed the Veteran with degenerative disc disease of the lumbar spine. The VA examiner's opinion reads in pertinent part as follows: The claimed lumbar condition is less likely as not (less than 50/50 probability) caused by or a result of insidious low back pain noted during military service. Through detailed evaluation of the pt's service record, there were several notes annotating a complaint of low back pain or spasm from 1976 to 1983. The pt was discharged from active duty on 5/10/84. The next note found in the VA record on 1/30/2002 at the Miami VA showed a diagnosis of low back pain dated 9/15/2000. To that end, the service file shows no documented evidence of ongoing treatment for low back pain from 1983 to 2000. The 17 year gap in documentation belies a causal relationship between the claimed lumbar condition and the annotated lumbar condition while on active duty. The present lumbar condition and degenerative disc disease is likely a natural progression and is otherwise unrelated to the pt's military service. One would expect continuous documentation of a low back condition after discharge from military service in order to establish a causal relationship. Report of March 2010 VA examination The Board finds that while this opinion gives a diagnosis and states that the Veteran's current disability is at less likely than not related to the Veteran's military service it also raises an unanswered question. The Board finds particular problems with the statement "The present lumbar condition and degenerative disc disease is likely a natural progression and is otherwise unrelated to the pt's military service." The Board finds that this statement is unclear because the VA examiner does not state what the Veteran's condition a natural progression is of. Is the examiner saying that the current situation is a "natural progression" of his documented in-service pain, or is the examiner saying that the current back problem is a "natural progression" of aging, or of some other event? Because of the questions raised by this statement, the Board finds that an addendum should be sought to clarify the opinion regarding the etiology of the Veteran's low back disorder. If the March 2010 VA examiner can give an addendum opinion clarifying his original opinion then the Veteran does not need to be afforded a new VA examination; however, if the March 2010 VA examiner cannot give an addendum opinion either because he/she is no longer employed at the Miami VA Medical Center or because it would be impossible to do so without examination of the Veteran, then the Veteran should be afforded a new VA examination. If the VA examiner is not able to give an addendum opinion then the Veteran should be afforded a new VA examination by a new VA examiner to determine the nature and etiology of his low back disability. Accordingly, the case is REMANDED for the following action: 1. The March 2010 VA examiner should be asked to give an addendum opinion in order to clarify the March 2010 original opinion, as outlined in this remand. Specifically, the examiner should be asked to clarify his statement indicating that the back condition is a "natural progression." If the March 2010 VA examiner is not available, then the Veteran should be scheduled for a VA examination to ascertain the nature and likely etiology of the low back disability. If that is the case, then the entire claims file and a copy of this remand must be made available to the examiner for review. The examiner should discuss the Veteran's documented medical history and any assertions regarding whether a low back disability is due to service. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. The VA examiner should identify if the Veteran has a current diagnosis of a low back disability. The examiner should provide a medical opinion as to whether it is at least as likely as not that any diagnosis of the low back is due to his military service, including his documented in-service treatment. In rendering his opinion, the VA examiner should discuss all opinions of record. A full and complete rationale for all opinions expressed is required. 2. After completing the requested actions, and any additional notification and/or development deemed warranted, the remaining issue on appeal should be readjudicated in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response. The case should then be returned to the Board for further appellate review, 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). No action is required of the appellant until further notice. However, the Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. 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. 2010). ______________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs