Citation Nr: 1135158 Decision Date: 09/20/11 Archive Date: 09/23/11 DOCKET NO. 08-24 695 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine THE ISSUES 1. Entitlement to a compensable rating for residuals of avulsion injury, web space, left hand, scar. 2. Entitlement to a rating in excess of 10 percent for residuals of a right hand fracture, mild thickening deformity and loss of use of the proximal phalanx middle finger (dominant). 3. Entitlement to a rating in excess of 10 percent for residuals of surgery to the left second toe, hallux valgus deformity, osteoarthritis, left first metatarsophalangeal (MTP) joint , prior to February 22, 2008, between April 1, 2008 and July 25, 2008, and from September 1, 2008. 4. Entitlement to a rating in excess of 40 percent for chronic low back strain. 5. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Penelope E. Gronbeck, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran had active military service from June 1979 to September 1979, from June 1980 to June 1983, and from March 1988 to March 1992, with additional service in the Army Reserves. The appeal comes before the Board of Veterans' Appeals (Board) on appeal of a January 2008 rating decision issued in February 2008 in which the RO denied the Veteran's increased rating and TDIU claims. Because the RO, in September 2008 and December 2008 rating decisions, granted a temporary total rating (TTR) for the left second toe disability, based on surgical or other treatment necessitating convalescence under the provisions of 38 C.F.R. § 4.30, effective July 25, 2008 through August 31, 2008, and effective February 22, 2008 through March 31, 2008, respectively, the Board has characterized issue 3 as described on the title page. The Veteran testified during a May 2011 videoconference hearing before the undersigned Acting Veterans Law Judge at the RO; a copy of the hearing transcript is associated with the record. The issues of entitlement to increased ratings for chronic back strain, left foot disability and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO. FINDINGS OF FACT 1. During the May 2011 videoconference hearing, the Veteran indicated that he wished to withdraw the issue of a compensable rating for residuals of avulsion injury, web space, left hand, scar. 2. The Veteran's right hand disability has been manifested by complaints of pain on gripping, decreased grip strength, and a gap between the right long finger and proximal transverse crease of the hand on maximal flexion of the finger of less than one inch (less than 2.5 cm), throughout the appellate period; it has not been manifested by unfavorable ankylosis nor does it approximate amputation of the long fingers with metacarpal resection. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a Substantive Appeal by the Veteran concerning the matter of entitlement to a compensable rating for residuals of avulsion injury, web space, left hand, scar have been met and that appeal is dismissed. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2010). 2. Resolving all doubt in the Veteran's favor, the criteria for a 20 percent rating, an no more, for residuals of a right hand fracture, mild thickening deformity and loss of use of the proximal phalanx middle finger (dominant), prior to February 22, 2008, between April 1, 2008 and July 25, 2008, and from September 1, 2008, have been met or approximated. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1-4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5226, 5229 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal of Claim Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn on the record during a hearing, and at any time before the Board promulgates a decision. See 38 C.F.R. §§ 20.202, 20.204 (2010). Withdrawal may be made by the Veteran or by his or her authorized representative. See 38 C.F.R. § 20.204. During a May 2011 videoconference Board hearing, the Veteran requested withdrawal of the appeal as to entitlement to a compensable rating for residuals of avulsion injury, web space, left hand, scar. Hence, there remain no allegations of errors of fact or law for appellate consideration with respect to that claim. Accordingly, the Board does not have jurisdiction to review the appeal as to issue of entitlement to a compensable rating for a residuals of avulsion injury, web space, left hand, scar, and it must be dismissed. Increased Rating VA's Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 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, 3.326(a) (2010). VA's notice requirements apply to all five elements of a service-connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has been made aware of the information and evidence necessary to substantiate his claim and has been provided opportunities to submit such evidence. Collectively, April 2007 and September 2007 pre-rating letters provided notice to the Veteran regarding what information and evidence was needed to substantiate his increased rating/TDIU claims, as well as what information and evidence must be submitted by him, what information and evidence would be obtained by VA, and the need for him to advise VA of and to submit any evidence in his possession that was relevant to the claim. This letter also provided notice of how disability ratings and effective dates are established consistent with the holding in Dingess. Thus, they met VA's content of notice and timing of notice requirements. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). A review of the claims file also shows that VA has conducted reasonable efforts to assist him in obtaining evidence necessary to substantiate the increased claim decided herein. His service treatment, Social Security Administration (SSA) and workers' compensation records have been obtained and associated with his claims file. He was provided with VA examinations in December 2007 and February 2010. These examinations, along with the other evidence of record, are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran provided testimony at a videoconference hearing. During that hearing, the undersigned explained what was needed to substantiate the Veteran's increased rating/TDIU claims and suggested additional evidence that could be submitted in support of his claims and held the record open for an additional sixty days to allow the Veteran the opportunity to submit additional evidence. The Veteran and his attorney were given the opportunity to ask questions and to provide additional argument in support of the claim decided herein. The Board therefore concludes that it has fulfilled its duties under the holding in Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). Accordingly, the Board finds that no further assistance to the Veteran in acquiring evidence is required by statute. 38 U.S.C.A. § 5103A. General Rating Considerations Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4 (2010). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. The United States Court of Appeals for Veterans Claims (Court) held in Francisco v. Brown, 7 Vet. App. 55, 58 (1994), that "[c]ompensation for service-connected injury is limited to those claims which show present disability" and held: "Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance." This holding has been modified in that separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. An evaluation of the level of disability present also includes consideration of the functional impairment of a veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. VA must consider "functional loss" of a musculoskeletal disability separately from consideration under the diagnostic codes; "functional loss" may occur as a result of weakness or pain on motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). VA must consider any part of the musculoskeletal system that becomes painful on use to be "seriously disabled." 38 C.F.R. § 4.40. Factual Background Due to a June 1988 right hand injury, in an August 1992 rating decision, the Veteran was granted service connection for residuals of a right hand fracture and assigned an initial 10 percent rating based on a May 1992 VA examination, which showed that the right hand abnormalities were confined to the middle finger. The proximal interphalangeal (PIP) joint was thickened as compared to the other joints; there was slight ulnar angulation of the finger at the PIP joint and slight medial rotation of the distal two-thirds of the finger. He could opposed the finger 1/2 inch from the palm, but when making a fist, the finger did not fall into place with the others and it was further than 1/2 inch from the palm. This disability rating has remained unchanged since then. During a December 2007 VA examination, the Veteran reported that that he does not get any treatment for discomfort of the hand. He does find that when the weather is cold he has a dull ache in the hand and the only other abnormality of the right hand is some limited strength because there is limited range of motion with the middle finger. He stated he is right hand dominant, and his right hand disability does not affect occupational function or activities of daily living. Upon examination, there was an abnormality in the form of a gap when grasping. The gap was approximated to be 1.5 cm between the tip of the middle finger and the palmar aspect. Grasp of the right hand was 2/5 compared to 5/5 on the left. There was full range of motion of all of the joints in the right hand. There was no swelling of the joints. On repetition, there was no increased in pain, fatigue, weakness, lack of endurance or incoordination. There was some tenderness along the distal interphalangeal (DIP) joint of the third finger, but again, no bony abnormality or swelling of the third finger was noted. The VA examiner indicated that the impact on physical and sedentary employment of residual fracture of the Veteran's right hand was mild. A July 2009 private orthopedic evaluation found no deformity in the distal radius. There was full range of motion of the radiocarpal joint in palmar flexion, plantar flexion, supination, and pronation. There was inability to bring the middle finger to the palm lacking 2.4 cm of reaching the palm with the pulp of the middle finger. The middle finger reportedly blanches white in response to cold. It was warm to touch during the examination. There was neither discoloration nor abnormal sweat response in the skin of both hands. Pinch strength testing in the right hand measured at thumb to middle finger 6, 7, 7 kilograms force, compared to the left thumb to middle finger 10, 9, and 7 kilograms force. Power grip measured right compared to left 51, 45, 45 kilograms force and left 50, 45 and 44 kilograms force. The diagnosis was residuals of comminuted fracture of proximal phalanx middle finger of the right hand with restrictions in ranges of motion and strength of key pinch thumb to middle finger right hand compared to left. Overall diminution in grip strength with loss of normal dominance factor right hand dominance compared to left hand dominance evidences in power grip. This private orthopaedic surgeon opined that a 20 percent rating is more appropriate for the right hand, noting strength changes, as well as range of motion changes involving the middle finger of the right hand. A June 2010 VA progress note revealed that the Veteran was ambulating with a cane in the right hand, and leaning on the cane when walking. During a February 2010 VA examination, the Veteran complained that his right hand will get cold very easily and he has difficulty gripping objects. He reported at times while gripping an object he will get a sharp pain in the right hand, and there is weakness in the right hand. There is also decreased flexion of the long finger. On examination, extension of the DIP, PIP, and metacarpophalangeal (MP) joints of the right long finger was normal. The gap between the left long finger and proximal transverse crease of the hand on maximal flexion of the finger was less than one inch (less than 2.5 cm). There was no gap between the right long finger and proximal transverse crease of hand on maximal flexion of the finger. The diagnoses were residuals of a right hand fracture with mild thickening deformity and loss of use of the proximal phalanx, middle finger (dominant). During his May 2011 Board hearing, the Veteran testified that he is right handed and that he has lost a third to a half of his grip strength in his right hand compared to his left. On occasion, he drops things if he does not have a full grip on them. The Veteran asserted he could not close his fist the entire way, though he can push the middle finger to touch the palm with pain. It is painful in cold weather, but he does not have swelling. He claimed he has a malunion at the injury site and he has also has "fish hook" arthritis. He denied any diagnosis of carpal tunnel syndrome. Analysis Under Diagnostic Code 5010, arthritis due to trauma substantiated by x-ray findings are to be rated as degenerative arthritis. Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, the disability is to be rated as follows: with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, 20 percent; with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, 10 percent. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2010). X-ray evidence of arthritis has not been shown. The evidence of record has been reviewed. In this regard, the Board points out that the Veteran's right hand disability was previously evaluated under Diagnostic Code 5226, ankylosis of the long finger. The Board will also evaluate the Veteran's disability under 38 C.F.R. § 4.71a, Diagnostic Code 5229 (2010) to ascertain which diagnostic code section best describes the degree of impairment. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of diagnostic code should be upheld so long as it is supported by explanation and evidence). The General Rating Schedule for Evaluation of Ankylosis or Limitation of Motion of Single or Multiple Digits of the Hand describes a favorable position as the wrist dorsiflexed 20 to 30 degrees, the metacarpophalangeal and proximal interphalangeal joints flexed to 30 degrees, and the thumb (digit I) abducted and rotated so that the thumb pad faces the finger pads. For digits II through V, the MC joint has a range of zero to 90 degrees of flexion, the PIP joint has a range of zero to 100 degrees of flexion, and the DIP has a range of zero to 70 or 80 degrees of flexion. When evaluating ankylosis of the long finger, if both the MC and PIP joints of a digit are ankylosed, and either is in extension or full flexion, or there is rotation or angulation of a bone, evaluate as amputation without MP resection, at PIP joint or proximal thereto under Diagnostic Codes 5153-5156. If both the MC and PIP joints of a digit are ankylosed, evaluate as unfavorable ankylosis, even if each joint is individually fixed in a favorable position. If only the MC or PIP joint is ankylosed, and there is a gap of more than 2 inches (5.1 cm.) between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, evaluate as unfavorable ankylosis. 38 C.F.R. § 4.71a. The Veteran had full range of motion in all joints of the right hand in December 2007 and February 2010 VA examinations, although there was decreased flexion of the long finger found during the later examination. A July 2009 private orthopedic evaluation found no deformity in the distal radius. There was full range of motion of the radiocarpal joint in palmar flexion, plantar flexion, supination, and pronation. There was inability to bring the middle finger to the palm lacking 2.4 cm of reaching the palm with the pulp of the middle finger. It must be noted that the Veteran does not have favorable or unfavorable ankylosis of any of the right hand digits, based upon these measurements, as defined in Dorland's, and accepted by the Court in Shipwash v. Brown, 8 Vet. App. 218 (1995). Both VA examinations noted full range of motion in all joints of the right hand. The medical evidence in this case has not shown favorable or unfavorable ankylosis of the right hand or of an individual digit, including the third (long) finger, of right left hand for rating purposes under Diagnostic Codes 5216 to 5227. Thus, the Board finds that a rating under Diagnostic Code 5254 is not warranted. The Board further finds insufficient evidence to warrant an the assigned 10 percent rating for his right hand disability for limitation of motion of the index or long finger under Diagnostic Code 5229. Under Diagnostic Code 5229, limitation of motion of the index or long finger with a gap of one inch (2.5 cm.) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible warrants a 10 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5229. In the December 2007 and February 2010 VA examinations, the gap between the tip of the long finger and the proximal transverse crease of the palm was less than an inch (2.5 cm.), at most it has been measured as 2.4 cm. Thus, the Board has determined that a 10 percent rating under Diagnostic Code 5229 is also not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5229. The Board has also taken into account 38 C.F.R. § 4.59 where it is the intention to recognize actually painful, unstable, or misaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Moreover, the current 10 percent more than amply compensates the Veteran for his right hand disability, even with consideration of DeLuca factors, such as, pain, weakness and incoordination. The evidence of record documents the Veteran's complaints of a sharp pain in his right hand while gripping during a February 2010 VA examination. For this reason, the Board finds no more than a 10 percent rating for the long finger under Diagnostic Code 5229 is warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5229. See also 38 C.F.R. § 4.59. Finally, the Board has also considered whether referral for extraschedular consideration is suggested by the record. In Thun v. Shinseki, F.3d 1366 (Fed. Cir. 2009), the Court articulated a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation is found inadequate because it does not contemplate the claimant's level of disability and symptomatology, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating. In the case at hand, there is no objective evidence that the disability picture presented is exceptional or that schedular criteria are inadequate. In this case, the Board finds there is no evidence of any unusual or exceptional circumstances, such as marked interference with employment or frequent periods of hospitalization related to his right index finger disability that would take the Veteran's case outside the norm so as to warrant the assignment of an extraschedular rating during the appeal period. Thus, it is concluded that the Veteran's impairment is contemplated by the schedular rating assigned. ORDER Entitlement to a compensable evaluation for a left hand scar is dismissed. Entitlement to a disability rating in excess of 10 percent for residuals of a right hand fracture, mild thickening deformity and loss of use of the proximal phalanx middle finger is denied. REMAND A review of the claims file shows that additional development is warranted for the remaining claims on appeal. During his May 2011 videoconference Board hearing, the Veteran reported that he recently had surgery on his left foot. The most recent records of VA treatment currently associated with the claims file are dated in December 2010. As any records of VA treatment since then are potentially pertinent to the appeal and within the control of VA, they should be obtained and associated with the claims file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). During the hearing, the Veteran also indicated that his back continues to deteriorate. VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991); see also Snuffer v. Gober, 10 Vet. App. 400 (1997). It therefore is the judgment of the Board that the Veteran should be provided another VA joints examination to determine the current level of severity of his left foot and lumbar spine disabilities, to include discussion of their impact on his employability. With regard to the Veteran's lumbar spine, on September 2, 2007, he sustained an on-the-job injury to his back, which has led to his being found unemployable by SSA. The VA examiner should describe the Veteran's symptoms, if possible, that are related to his service-connected from those that are the result of his recent work-related injury. See Mittleider v. West, 11 Vet. App. 181 (1998) (where it is not possible to distinguish the effects of a nonservice-connected condition from those of a service-connected one, the reasonable doubt doctrine dictates that all symptoms be attributed to the Veteran's service-connected disability). During the videoconference hearing, the Veteran and his attorney claimed that his service-connected disabilities preclude him from securing and following a substantially gainful occupation, even though the Veteran currently does not meet the schedular criteria for a TDIU, under the provisions of 38 C.F.R. § 4.16(a), the issue of entitlement to a TDIU on an extraschedular TDIU rating, under the provisions of 38 C.F.R. § 4.16(b), is raised by the record. See generally Rice v. Shinseki, 22 Vet. App. 447 (2009). Finally, the Board notes that the evaluations assigned with regard to the Veteran's increased ratings claims are inextricably intertwined with entitlement to a TDIU. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered until both are adjudicated). As such, it follows that Board resolution of the claims remaining on appeal, at this juncture, would be premature pending additional development. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding medical records for treatment and evaluation of the Veteran from the Togus VA Medical Center, since December 17, 2010. All records and responses received should be associated with the claims file. 2. Send a letter to the Veteran and his attorney and ask him to complete a VA Form 21-8940 and provide information on his employment. Asking the Veteran to identify private healthcare providers that have treated him for any of his service-connected disabilities. If necessary, request authorization to enable VA to obtain any additional evidence that is not currently of record, to include workers' compensation records. In addition, explain to the Veteran what information is needed to substantiate entitlement to a TDIU, to include on an extraschedular basis, and what VA's and the Veteran's respective duties are. Assist the Veteran in obtaining any additional evidence identified 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, notify the Veteran and his attorney of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After completion of 1 and 2 above, to the extent possible, schedule the Veteran for a VA foot examination to assess the nature and severity of his service-connected left foot disability. The entire claims file, to include a complete copy of the REMAND, must be made available to the examiner designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests (to include x-rays, as necessary) and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should note the ranges of motion for the left foot. The examiner should also render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the low back. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner is asked to comment on whether the hallux valgus deformity of the left second toe is so severe that it is equivalent to amputation or it operated on with resection of metatarsal head. The examiner should also indicate whether the residuals of surgery to the left second toe, hallux valgus deformity, osteoarthritis of the left first MTP joint is equivalent to a moderate, moderately severe or severe foot injury. The examiner should also discuss the effects, if any, of the Veteran's left foot disability on his ability to secure and follow a substantially gainful occupation. The examiner should set forth all examination findings, along with the rationale for any conclusions reached, in a printed report. If any requested opinion cannot be provided, the examiner should give the reason(s) why. 4. After completion of 1, 2 and 3 above, to the extent possible, schedule the Veteran for a VA spine examination to assess the nature and severity of his service-connected chronic low back strain. The entire claims file, to include a complete copy of the REMAND, must be made available to the examiner designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests (to include x-rays, as necessary) and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should conduct range of motion testing of the lumbar spine (expressed in degrees, with and without pain). The examiner should also render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the low back. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner should also indicate whether there is any ankylosis of the spine, and if so, whether such is favorable or unfavorable, and the extent of such ankylosis. The Veteran sustained a work-related injury to his lumbar spine on September 2, 2007. If any examination findings are markedly at variance with the findings from the June 2005 VA examination, the examiner should explain the possible reasons for such inconsistencies, to include whether the Veteran's current degenerative disc disease (DDD), is proximately due to or was aggravated by the Veteran's service-connected chronic low back strain, or is the result of the September 2007 work-related injury. If the Veteran's DDD is not related to the Veteran's service-connected disability, the examiner should indicate which symptomatology is the result of only the Veteran's low back strain. If it is not possible to separate the effects of a nonservice-connected condition from the Veteran's service-connected chronic low back strain, the examiner should so state. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). With regard to the Veteran's DDD, the examiner should render findings as to the existence and frequency of any incapacitating episodes (i.e., a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician), specifically, whether over the last 12-month period, the Veteran's incapacitating episodes had a total duration of (a) at least 2 weeks but less than 4 weeks; (b) at least 4 weeks but less than 6 weeks; or (c) at least 6 weeks. In particular, the examiner should describe the impact of the Veteran's service-connected low back strain on his occupational and social functioning, and specifically opine as to the severity of this disability either alone, or together with his other service-connected disabilities, renders him unable to secure and/or follow a substantially gainful occupation without regard to age or nonservice-connected disabilities. The examiner should comment on the Veteran's education and work experience in discussing his employability. If the Veteran is unemployable due to his service-connected disability(ies), the examiner should indicate the time of onset. The examiner should set forth all examination findings, together with the complete rationale for the comments and opinions expressed, in a printed report. If any requested medical opinion cannot be given, the examiner should state the reason(s) why. 5. Give the Veteran adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent must be associated with the claims file. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have an adverse effect on his claims. 6. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the increased rating/TDIU issues remaining on appeal, in light of all pertinent evidence and legal authority. VA should document its consideration of whether: (1) "staged rating," pursuant to Hart v. Mansfield, 21 Vet. App. 505 (2007), (2) referral for an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b), and (3) referral for an extraschedular TDIU under 38 C.F.R. § 4.16(b) are warranted. If any benefit sought on appeal remains denied, the Veteran and his attorney should be furnished a supplemental statement of the case and afforded an appropriate period of time to respond, before the claims file is returned to the Board. The Veteran 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 appeal 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). ______________________________________________ M. R. VAVRINA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs