Citation Nr: 1219782 Decision Date: 06/06/12 Archive Date: 06/20/12 DOCKET NO. 09-10 860 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for degenerative disc disease of the lumbar spine prior to April 20, 2010. 2. Entitlement to a disability rating in excess of 10 percent for degenerative disc disease of the lumbar spine from April 20, 2010. 3. Entitlement to service connection for radiculopathy of the lower extremities secondary to service connected degenerative disc disease of the lumbar spine. 4. Whether the combined evaluation assigned for all service connected disabilities is proper. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1990 to February 1993, and from February 1995 to February 2001. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, that granted service connection for degenerative disc disease of the lumbar spine. The Veteran disagreed with the initial rating assigned. The issues of entitlement to a disability rating in excess of 10 percent for degenerative disc disease of the lumbar spine from April 20, 2010, entitlement to service connection for radioculopathy secondary to service connected degenerative disc disease of the lumbar spine and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. FINDING OF FACT Prior to April 20, 2010, symptoms of the Veteran's degenerative disc disease of the lumbar spine included pain beginning at 60 degrees of forward flexion, mild levoscoliosis, and minimal muscle spasm. CONCLUSION OF LAW For the period prior to April 20, 2010, the criteria for an initial rating of 20 percent for degenerative disc disease of the lumbar spine have been more nearly approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5237 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant 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, and 3.326(a) (2011). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. See Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (holding that VCAA notice errors are reviewed under a prejudicial error rule). In this case, in a May 2006 letter the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter also advised him of how disability evaluations and effective dates are assigned and the type of evidence which impacts those determinations. The case was last adjudicated in February 2010. This appeal arises from the initial award of service connection. In Dingess, the Court held that in cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490-91; see also 38 C.F.R. § 3.159(b)(3)(i) (2011). Thus, because the notice that was provided before service connection was granted was sufficient, VA's duty to notify in this case has been satisfied. See generally Turk v. Peake, 21 Vet. App. 565 (2008) (holding that where a party appeals from an original assignment of a disability rating, the claim is classified as an original claim, rather than as one for an increased rating); see also Shipwash v. Brown, 8 Vet. App. 218, 225 (1995); see also Fenderson v. West, 12 Vet. App. 119 (1999) (establishing that initial appeals of a disability rating for a service-connected disability fall under the category of "original claims"). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including his service treatment records, VA examination reports, post service treatment records, and hearing testimony. VA has considered and complied with the VCAA provisions discussed above. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). 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 (West 2002); 38 C.F.R. § 4.1 (2011). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting 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 (2011); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2011); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2011); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2011). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the claimant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. 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. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2011); see also 38 C.F.R. §§ 4.45, 4.59 (2011). The Board has reviewed all of the evidence in the Veteran's claims file and Virtual VA electronic file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is assigned with forward flexion of the thoracolumbar spine of 85 degrees or less, with a combined range of motion of the thoracolumbar spine of 235 degrees or less, with muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or where there is vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned with forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, with the combined range of motion of the thoracolumbar spine not greater than 120 degrees, or with muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned with forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Higher ratings require unfavorable ankylosis of the thoracolumbar or entire spine. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2011). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion is zero to 30 degrees, and left and right lateral rotation is zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. See id., Note (2); see also id., at Plate V. Any associated objective neurologic abnormalities, including, but not limited to bowel or bladder impairment are evaluated separately under an appropriate diagnostic code. Id., Note (1). Degenerative disc disease can alternatively be rated based on incapacitating episodes. With incapacitating episodes having a total duration of at least six weeks during the past 12 months, a 60 percent evaluation is warranted, with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent evaluation is warranted. With incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent evaluation is warranted. With incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months, a 10 percent evaluation is warranted. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (2011). An "incapacitating episode" is 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. Id. at Note (1). The claims file includes private treatment records. A March 2007 MRI report from Wellington Regional Medical Center noted findings of mild levoscoliosis with disc desiccation and mild narrowing at the presumed L5-S1 disc level. At that level, moderate sized central disc protrusion was noted but there was no compression of the thecal sac or central canal stenosis. Intraspinal S1 nerve roots were unremarkable. A March 2007 doctor's Note for Disability or Release from Disability indicated that the Veteran should not due to a lumbar herniated nucleus pulposus. In December 2007 the Veteran underwent a VA examination. It was noted that he was presently employed at a call center for the past 4 months in a sedentary position. His prior occupation was noted to be forest ranger. The examiner noted that an MRI was positive for multilevel degenerative changes of the lumbar spine. During his examination, the Veteran described a tingling in his leg that felt as though it was falling asleep. He stated that he could walk for thirty minutes but then had to sit due to pain in his low back. It was noted that there were no incapacitating episodes which required physician-prescribed bedrest. There was no history of hospitalization or surgery. There was no history of urinary or fecal incontinence or numbness. Parethesias into the left leg was reported. There was stiffness and pain reported, but there were no flare-ups of the spinal condition reported. There were no limitations on walking reported. Physical examination demonstrated no objective evidence of spasm, guarding, pain with motion, tenderness or weakness. Posture was normal and there was no kyphosis, lordosis or scoliosis found. Neurologic testing was normal throughout, to include the left lower extremity. Ankylosis was not found. Range of motion testing revealed flexion between 0 and 90 degrees with pain beginning at 60 degrees, extension was from 0 to 30 degrees with pain at 20 degrees. Lateral flexion was from 0 to 30 degrees bilaterally as was lateral rotation. There was no additional limitation of motion with repetitive testing. Lasegue's sign was negative. A diagnosis of degenerative disc disease of the lumbar spine was provided. A preliminary report from the University of North Carolina Hospitals dated in February 2008 noted that the Veteran complained of a history of back pain. He described a light pain, approximately 3 out of 10 on the pain scale which was constant and which increased with activity to severe pain which caused him to lie down and which impaired his activities of daily living. He stated that he was a firefighter and had to switch to a desk job due to his back pain. He stated that he had pain if he walked longer than 20 minutes and stated that generally he could function during the day but that by the end of the day he had to ice his back and take painkillers. He denied radiation down to his legs or any other part of his body. He stated that occasionally he noted pins and needles down his right foot but this resolved within minutes. He denied any bladder or bowel symptoms. Physical examination revealed normal cranial nerves, tone bulk and strength were preserved. Normal reflexes were found in all extremities. Sensory examination revealed decreased vibration, light touch and pinprick over the right toe and perhaps a little bit on the right leg, but the physician stated that this was inconsistent. There was no significant tenderness of the lumbar spine to palpitation. Gait was normal. The physician stated that the Veteran had pain and sensory symptoms that were referable to the region to support radiculopathic pattern of symptoms. A September 2008 clinic note from University of North Carolina Hospitals reported that the Veteran had visited the emergency room with an acute episode of pain. He stated that he was on the floor for fifty minutes and could not move his right leg. He stated that he had pain shooting down his right leg with numbness the whole day. An October 2008 clinic note from University of North Carolina hospitals reported that the Veteran presented for epidural steroid injection in a series of such injections. The Veteran denied bladder or bowel changes and stated that he was quite active at the gym. Sensory and motor function was found to be grossly intact, it was noted that the Veteran had excellent range of motion with lumbar flexion and extension. In a March 2009 statement in support of his claim, the Veteran stated that everything he did was limited so that he was not "laid up" for four weeks at a time. He stated that his back injury affected everything that he did and that he did not request physician prescribed bed rest but that he could. Private treatment records dated from University of North Carolina hospitals dated in 2009 revealed the Veteran again presenting for epidural steroid injections for his back pain. In May 2009, minimal muscle spasm was noted. It was noted the Veteran receives short term relief from epidural steroid injections. In June 2009 he requested surgical treatment for his back problems. The physician advised him against it as a discectomy would have a low likelihood of helping his pain. The Veteran was afforded a VA medical examination on April 20, 2010. During his examination, the Veteran reported a history of mid to low back pain. He reported no flare-ups or incapacitating episodes. Physical examination of the spine revealed normal curvatures and posture. The Veteran's gait was normal. There was no muscle spasm, tenderness or guarding found. Ankylosis was not observed and straight leg raising was negative. Motor function was full in all testing, to include the lower extremities. Sensory function was normal. Range of motion testing revealed flexion from 0 to 95 degrees and extension from 0 to 10 degrees. Lateral bending was from 0 to 30 degrees bilaterally. Rotation was from 0 to 30 degrees on the right side and from 0 to 25 degrees on the left. No pain on range of motion testing was reported. There was no loss of motion secondary to pain or weakness, and no additional limitation of joint function or lack of endurance on repetition of all motions. During the period prior to April 20, 2010, the evidence shows the Veteran able to flex forward, but that his pain began at 60 degrees during testing in December 2007. In March 2007, mild levoscoliosis was noted on MRI. In May 2009, minimal muscle spasm was noted. During the period in question, private treatment records show the Veteran undergoing multiple epidural steroid injections for his back pain. The Veteran provided written argument discussing how he limits his activities to avoid flare-ups of back pain. Upon consideration of the lay and medical evidence of record, and after resolving all doubt in the Veteran's favor, the Board concludes that the Veteran's symptomatology from his degenerative disc disease of the lumbar spine during the period prior to April 20, 2010 more nearly approximates the criteria for a 20 percent rating. See DeLuca, 8 Vet. App. 202; 38 C.F.R. §§ 4.40; 4.45, 4.59. An even higher rating is not warranted during this period as the Veteran's forward flexion was not limited to 30 degrees or less, even considering complaints of pain. Id. Moreover, incapacitating episodes totaling two weeks or more have not been shown. Indeed, the Veteran conceded that he would only warrant a 10 percent rating under the incapacitating episode scale. The Board has also considered whether the Veteran's degenerative disc disease of the lumbar spine presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2011); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for consideration of greater disability and symptoms than currently shown by the evidence. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extra-schedular consideration is not warranted. The Board acknowledges that the evidence is still being developed for a possible TDIU claim with regard to any effects of his service-connected degenerative disc disease on his employment. However, as noted above, any impact on the Veteran's employment would need to be considered for extraschedular purposes only if the schedular criteria are inadequate to rate his service-connected disabilities. Id. at 118 ("[I]n cases regarding whether extraschedular referral is warranted, the threshold determination is whether the disability picture presented in the record is adequately contemplated by the rating schedule."). As the schedular rating adequately contemplates his degenerative disc disease of the lumbar spine, referral for extraschedular consideration is not warranted. Thus, remand of the issue decided herein is not required. See Gurley v. Nicholson, 20 Vet. App. 573, 576 (2007); see also Dunlap v. Nicholson, 21 Vet. App. 112, 120 (2007) (resolution of claim for a higher initial disability rating by the Board or this Court is not dependent on VA's adjudication of the TDIU claim). In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER For the period prior to April 20, 2010, entitlement to a 20 percent disability rating for degenerative disc disease of the lumbar spine is granted, subject to the rules and regulations governing the payment of VA monetary benefits. REMAND In the April 2012 informal hearing presentation, the Veteran's representative noted the Veteran's assertion that his lumbar spine symptoms had increased in severity. In this regard, the Board notes that the Veteran's last VA examination was conducted in April 2010, and showed full forward flexion, and only slight limitation in extension, rotation, and lateral bending. Based on the above assertion, a new examination should be scheduled. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (a Veteran is entitled to a new examination after a two-year period between the last VA examination and a Veteran's contention that the pertinent disability had increased in severity). Additionally, under the diagnostic criteria for rating diseases of the peripheral nerves of the lower extremities (Diagnostic Codes 8520-8530) where there is evidence of at least mild incomplete paralysis for assignment of a rating under those codes, a separate disability rating may be awarded based on the Veteran's service-connected degenerative disc disease. Here, the claims file contains conflicting evidence as to whether there is objective evidence of neurological involvement of the lower extremities with the Veteran's spine disorder. Accordingly, such matter should also be addressed by the VA examination. Since the Board has determined that a VA examination is necessary in the instant case, the Veteran is hereby informed that 38 C.F.R. § 3.326(a) (2011) provides that individuals for whom examinations have been authorized and scheduled are required to report for such examinations. The provisions of 38 C.F.R. § 3.655 (2011) provide that, when entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without "good cause," fails to report for such examination scheduled in conjunction with a claim for increase, the claim shall be denied. Additionally, VA regulations allow for the assignment of a TDIU when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (2011). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims held that a claim of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders is part of an increased rating claim when such claim is raised by the record. It is unclear whether the Veteran is, in fact, requesting a TDIU. In a March 2009 statement, the Veteran specifically indicated that he did not believe he was 100 percent disabled. In a February 2010 statement in support of his claim, the Veteran stated that he had not worked for a year and a half secondary to his back pain and the April 2010 VA examination reports a similar claim. Thus, on remand, the RO/AMC should clarify whether the Veteran is, in fact, claiming entitlement to TDIU due to his back condition. If so, appropriate development in accordance with 38 C.F.R. § 3.159 should be undertaken. Additionally, ongoing private and VA medical records related to treatment the Veteran receives for his degenerative disc disease should also be requested. 38 U.S.C.A. § 5103A (West 2002). As a final matter, the Board notes the Veteran's April 2008 notice of disagreement specifically disagreed with the combined rating assigned following the award of service connection for his back disability. He argued that his disability percentages added to 80 percent, yet he was only receiving a 60 percent combined rating. Subsequent correspondence from the Veteran has again expressed frustration as to why his combined rating has not changed. Although the March 2008 notice letter advised him that the percentages are not added, but are based on a combined rating table that considers the effect from the most serious to the least serious conditions, no additional explanation has been provided to the Veteran. In a February 2010 letter, the Veteran continued to express disagreement with the combined evaluation assigned. Accordingly, the Board is required to remand this issue to the RO/AMC for the issuance of a statement of the case (SOC) concerning the Veteran's disagreement with his combined service-connected evaluation. See Manlincon v. West, 12 Vet. App. 238 (1999). After the RO/AMC has issued the SOC, the issue should be returned to the Board only if the veteran perfects the appeal in a timely manner. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran whether he is claiming entitlement to a TDIU. If so, all appropriate development should be conducted, to include providing the appropriate form (VA Form 21-8940) for completion and providing appropriate VCAA notice advising the Veteran of the information and evidence necessary to substantiate a claim for TDIU. 2. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his lumbar degenerative disc disease to include any neurological symptoms. After securing any necessary release, the RO/AMC should request any records which are not duplicates of those contained in the claims file. If any identified records are not available, the Veteran should be notified of such. In addition, obtain updated relevant treatment records from the VA Medical Center in Durham, North Carolina, to include the Raleigh Community Based Outpatient Clinic. 3. Then the RO/AMC should schedule the Veteran for a VA spine examination to determine the current nature and severity of his service-connected degenerative disc disease of the lumbar spine. The claims file must be reviewed by the examiner in conjunction with the appeal. All indicated tests and studies should be performed and all clinical findings should be reported in detail. The examiner should set forth all examination findings, including range of motion (including the degree at which pain begins) and motor and sensory neurological evaluation. a. The examiner should describe any functional loss pertaining to degenerative disc disease, due to pain or weakness, and to document all objective evidence of those symptoms. In addition, the examiner should provide an opinion on the degree of any functional loss that is likely to result from a flare-up of symptoms or on extended use. The examiner should also document, to the extent possible, the frequency and duration of any incapacitating episodes (acute signs and symptoms of intervertebral disc syndrome that have required bed rest prescribed by a physician and treatment by a physician). b. The examiner should document any neurological impairment resulting from the Veteran's degenerative disc disease of the lumbar spine to include to include radiculopathy into the lower extremities. c. The examiner should also provide an opinion as to impact of the Veteran's degenerative disc disease of the lumbar spine and any associated neurological symptomatology on the Veteran's ability to obtain or maintain gainful employment. d. The examiner should explain the medical bases for the opinions provided. 4. After conducting any additional development deemed necessary, the RO/AMC should readjudicate the claim for an evaluation in excess of 10 percent for lumbar spine degenerative disc disease from April 20, 2010, to include TDIU if claimed, and service connection for radiculopathy of the lower extremities. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case (SSOC) and be given an opportunity to respond thereto. 5. Issue a statement of the case on the Veteran's disagreement with the combined evaluation assigned to his service connected disabilities, so that he may have the opportunity to complete an appeal on this issue (if he so desires) by filing a timely substantive appeal. The issue should only be returned to the Board if a timely substantive appeal is filed. 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. 2011). ______________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs