Citation Nr: 1233765	
Decision Date: 09/27/12    Archive Date: 10/09/12

DOCKET NO.  05-389 55A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to an increased evaluation for a back strain with history of minimal diffuse bulge at L2-3, L3-4, and L4-5, currently evaluated as 20 percent disabling.

2.  Entitlement to an increased evaluation for arthralgia of the left knee with loss of function due to pain, currently evaluated as 10 percent disabling.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Veteran



ATTORNEY FOR THE BOARD

K. Millikan, Counsel


INTRODUCTION

The Veteran served on active military duty from December 1988, to December 1990.  This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision by the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA) and September 2008 and June 201 Board remands.

In March 2008, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge.  A transcript of this hearing is associated with the claims file.

The issue of entitlement to increased evaluation for a back strain with history of minimal diffuse bulge at L2-3, L3-4, and L4-5 (lumbar spine disability), currently evaluated as 20 percent disabling is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

The Veteran's service-connected arthralgia of the left knee with loss of function due to pain (left knee disability) is manifested by meniscus abnormality with episodes of locking and effusions into the joint.



CONCLUSION OF LAW

The criteria for an evaluation of 20 percent, but no more, for a service-connected left knee disability have been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 4.71a, Diagnostic Code 5258 (2011).


REASONS AND BASES FOR FINDING AND CONCLUSION

Under the Veterans Claims Assistance Act of 2000 (VCAA), 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 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011).

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002).  This notice must be provided prior to an initial RO decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  For increased rating claims, the VCAA requires generic notice of the type of evidence needed to substantiate the claim, i.e., evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned.  Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1280-81 (Fed. Cir. 2009).

Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication, such as where (1) the claimant demonstrates actual knowledge of the content of the required notice; (2) a reasonable person could be expected to understand from the notice what was needed; or (3) a benefit could not have been awarded as a matter of law.  Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009).  Defective timing may be cured by a fully compliant notice letter followed by a readjudication of the claim.  Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). 

Here, VA's duty to notify has been satisfied.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).   An October 2006 letter that contained the required content of notice was sent to the Veteran prior to initial adjudication of his claim.  Additionally, the Veteran was represented by a certified veterans' service organization throughout the claims process.  Accordingly, VA's duty to notify has either has been satisfied or any deficiency has caused no prejudice to the Veteran.  

VA's duty to assist the Veteran has also been satisfied.  38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(c)(1)-(3).  The Veteran's service treatment records, VA medical records, and identified private medical records have been obtained.   VA provided the Veteran with medical examinations in 2006 and 2011.  Taken together, the examinations are adequate because they contain a history obtained from the Veteran and a thorough orthopedic examination of the knee relevant to the applicable rating criteria.  Additionally, the 2011 examination was conducted upon a review of the claims file.  In August 2012, the Veteran sent in additional evidence to the Board without a waiver of RO consideration.  Any additional pertinent evidence received by the Board that has not already been considered by the RO must be referred to the RO for consideration unless there has been a waiver of such consideration.  38 C.F.R. § 20.1304(c) (2011).  But the newly-submitted evidence is not pertinent as it relates to the Veteran's back disability.  Accordingly, no waiver is required and there is no prejudice to the Veteran in proceeding to adjudicate this claim.  Furthermore, the Veteran provided testimony at a March 2008 Board hearing.  There is no indication in the record that additional evidence relevant to the issues decided herein is available and not part of the claims file.  See Pelegrini, 18 Vet. App. at 121-22.  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537, 542-43 (2006), aff'd, Mayfield v. Nicholson, 499 F.3d 1317 (2007); see also Dingess/Hartman, 19 Vet. App. at 486.

This appeal was remanded by the Board in June 2011.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order).  That remand requested that the AMC attempt to obtain records from the Denver, Colorado VA Medical Center (VAMC) and to provide the Veteran with a current knee examination.  In July 2011, the Denver VAMC notified the AMC that there were no records for the Veteran as he had never been a patient there.  A September 2011 VA examination was conducted that complied with the Board requests.  Accordingly, the Board finds that there has been substantial compliance with its previous remand and it may proceed to adjudication of this appeal.  D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand).

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2011).  The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2011).  In resolving this factual issue, the Board may only consider the specific factors as are enumerated in the applicable rating criteria.  See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992).

In considering the severity of a disability, it is essential to trace the medical history of the veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41 (2011).  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Additionally, if two evaluations are potentially applicable, the higher evaluation is assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating is assigned.  38 C.F.R. § 4.7 (2011).  Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2011).

Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending.  Powell v. West, 13 Vet. App. 31, 34 (1999).  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 concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Staged ratings are, however, appropriate when the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).  "The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim."  Hart, 21 Vet. App. at 509.

The Veteran's left knee disability is assigned a 10 percent evaluation under Diagnostic Code 5299-5260, which is intended to show that the disability was rated analogously to limitation of flexion, Diagnostic Code 5260.  See 38 C.F.R. § 4.20 (2011) (stating that an unlisted condition may be rated under a closely related disease or injury in which the functions affected, anatomical localization, and symptomatology are closely analogous); 38 C.F.R. § 4.27 (2011) (noting that unlisted disabilities rated by analogy are coded first by the numbers of the most closely related body part and then "99").  The 10 percent evaluation contemplates limitation of flexion to 45 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5260.  

For limitation of leg flexion, 20 and 30 percent evaluations are assigned for flexion limited to 30 and 15 degrees, respectively.  38 C.F.R. § 4.71a, Diagnostic Code 5260.  At the November 2006 VA examination, flexion was to 90 degrees.  At the September 2011 VA examination, there was flexion to 110 degrees.  These are the only range of motion findings for the appeal period; the findings do not demonstrate flexion limited to 30 or 15 degrees.  Accordingly, an increased evaluation on this basis is not warranted.  

The Board has considered other potentially applicable diagnostic codes.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  For dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint, a maximum 20 percent evaluation is assigned.  38 C.F.R. § 4.71a, Diagnostic Code 5258 (2011).  In various lay statements of record, the Veteran has provided competent testimony of left knee swelling, locking, and pain.  See 38 CFR § 3.159(a)(2) (2011) (providing that lay evidence is competent where it does not require specialized education, training, or experience, and is provided by a person who has knowledge of facts or circumstances).  The Board finds these statements credible as they have remained consistent.  See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996).  In a November 2006 VA joints examination report, the Veteran reported left knee pain, episodes of locking several times a year, and repeated effusion.  The examiner found meniscus abnormality due to effusion, but found no dislocation or locking.  At the March 2008 Board hearing, the Veteran reported that his left knee swelling was more noticeable.  At the September 2011 VA joints examination, the Veteran reported left knee locking episodes of one to three times per month and swelling.  The VA examiner found no meniscus abnormality.  Thus, the evidence shows swelling with episodes of locking and pain, and a 2006 finding of meniscus abnormality.  Resolving all reasonable doubt in favor of the Veteran, the Board finds that a 20 percent evaluation is warranted.  See 38 C.F.R. § 4.3.  This is the maximum evaluation provided under this diagnostic code; no higher evaluation is warranted.  

Accordingly, the Board will consider other potentially applicable diagnostic codes to determine if an evaluation in excess of 20 percent is warranted.  Schafrath, 1 Vet. App. 589.  For limitation of leg extension, 30, 40, and 50 percent evaluations are assigned for extension limited to 20, 30, and 45 degrees, respectively.  38 C.F.R. § 4.71a, Diagnostic Code 5261 (2011).  At the November 2006 VA examination, extension was to zero degrees.  At the September 2011 VA examination, there was extension to zero degrees.  These are the only range of motion findings for the appeal period; the findings do not demonstrate extension limited to 20, 30, or 45 degrees.  Accordingly, an increased evaluation on this basis is not warranted.  

For ankylosis, a 30 percent evaluation is assigned for a favorable angle in full extension or slight flexion between 0 and 10 degrees; a 40 percent evaluation is assigned for flexion between 10 and 20 degrees; a 50 percent evaluation is assigned for flexion between 20 and 45 degrees, and a 60 percent evaluation is assigned for extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more.  38 C.F.R. § 4.71a, Diagnostic Code 5256 (2011).  But the November 2006 and September 2011 VA examination reports noted there was no left knee ankylosis and indicated range of motion from full extension to 90 or 110 degrees of flexion.  Accordingly, an increased evaluation for ankylosis is not warranted.

For other knee impairment, a maximum 30 percent evaluation is assigned for severe recurrent subluxation or lateral instability.  38 C.F.R. § 4.71a, Diagnostic Code 5257 (2011).  The Veteran reported instability at the November 2006 VA examination and reported give-way at the March 2008 Board hearing.  But the November 2006 VA examiner determined there was no instability.  At the September 2011 VA examination, the Veteran denied instability.  Likewise, the examiner found that there was no instability.  Thus the evidence does not show severe subluxation or instability.  Accordingly, an increased evaluation on this basis is not warranted.  

The evidence also did not demonstrate malunion or nonunion of the femur or tibia and fibula.  38 C.F.R. § 4.71a, Diagnostic Codes 5255, 5262 (2011).  Furthermore, evaluations in excess of 20 percent are not provided for arthritis, symptomatic removal of semilunar cartilage, or genu recurvatum.  38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5259, 5263 (2011).  Accordingly, increased evaluations under alternate diagnostic codes are not warranted.

Separate evaluations for arthritis and instability have been considered.  See VAOPGCPREC 23-97; 62 Fed. Reg. 63604 (1997) (arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, provided that any separate rating is based upon additional disability); VAOPGCPREC 9-98; 63 Fed. Reg. 56704 (1998) (if a veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is x-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59).  But as noted above, the evidence of record does not support a finding of instability. 

Separate evaluations for limitation of knee extension and flexion have also been considered.  See VAOPGCPREC 9-04; 69 Fed. Reg. 59990 (2005) (holding that where a knee disability manifests both limitation of flexion and limitation of extension, VA is to provide two separate ratings under Diagnostic Codes 5260 and 5261).  For limitation of leg flexion, noncompensable, 10, 20, and 30 percent evaluations are assigned for flexion limited to 60, 45, 30, and 15 degrees, respectively.  38 C.F.R. § 4.71a, Diagnostic Code 5260.  For limitation of leg extension, noncompensable, 10, 20, 30, 40, and 50 percent evaluations are assigned for extension limited to 5, 10, 15, 20, 30, and 45 degrees, respectively.  38 C.F.R. § 4.71a, Diagnostic Code 5261.  As noted previously, limitation of extension findings showed extension to zero degrees.  Limitation of flexion findings showed flexion to 90 and 100 degrees.  These findings do not warrant compensable evaluations.  Accordingly, separate evaluations are not warranted. 

Consideration has also been provided regarding whether there is any additional functional loss not contemplated in the current 20 percent rating.  See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2011); see also DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).  Factors involved in evaluating and rating disabilities of the joints include:  weakness; fatigability; lack of coordination; restricted or excess movement of the joint; or, pain on movement.  38 C.F.R. § 4.45 (2011).  Painful motion, however, is not deemed limited motion; rather pain must cause an additional functional loss.  See Mitchell v. Shinseki, 25 Vet. App. 32, 39-44 (2011).  

At the November 2006 VA joints examination, the Veteran reported left knee pain for which he used medication and bracing.  He was able to stand for more than 1 hour, but less than three hours.  He was able to walk more than 1/4 mile, but less than one mile.  The Veteran reported instability, pain, and weakness, episodes of dislocation or subluxation, episodes of locking, and repeated effusion.  The Veteran's gait was normal.  Upon examination, there was no additional limitation of motion upon repetition.  There was crepitus and painful movement, but no mass behind the knee, clicks or snaps, grinding, instability, or patellar abnormality.  There was meniscus abnormality because there was an effusion, but the meniscus was not surgically absent and there was no dislocation or locking.  The examiner found there were no effects on traveling, feeding, bathing, dressing, toileting, and grooming and mild effects on chores, shopping, exercise, sports, and recreation.  In a February 2008 VA record, the Veteran reported increased knee pain.  There was no crepitus.  At the March 2008 Board hearing, the Veteran reported left knee weakness, and pain of 8 out of 10.  He stated that waking up, stiffness and weakness were to such a degree that he had to manipulate the leg itself.  He reported that he wore a brace at times.  The Veteran noted left knee give way or weakness that causes him to fall, and that he could only walk 10 to 15 steps before he felt weakness.  He takes pain Ibuprofen and Tramadol and Flexeril.  He felt his swelling was more noticeable.  

In an April 2010 lay statement, the Veteran reported ongoing left knee pain with periodic weakness, which required the use of a knee brace.  The Veteran stated that he had fallen several times due to his knee weakness.  An April 2010 lay statement was submitted by a friend of the Veteran, JW, who stated that he had known the Veteran for seven years.  JW noted witnessing several occasions of the Veteran having issues with his back and knees.  In a September 2011 VA joints examination report, the Veteran reported constant left knee pain for which he took medication.  There was no left knee deformity, instability, incoordination, effusions, or flare-ups.  He reported give-way, pain, stiffness, weakness, locking episodes one to three times per month, swelling, and tenderness.  The Veteran denied incapacitating episodes.  He was able to walk more than 1/4 mile, but less than 1 mile.  He used a cane and a brace, intermittently, but frequently.  His gait was normal, and there was no evidence of abnormal weight bearing.  There was mild tenderness over the knee diffusely, but no crepitation, mass behind knee, clicks or snaps, grinding, instability, patellar or meniscus abnormality, abnormal tendons or bursae, or other knee abnormalities.  There was objective evidence of pain upon motion, but no increased limitation of motion upon repetition.  The Veteran had reported that he had been assigned different duties.  There were no effects on traveling, feeding, bathing, dressing, toileting, grooming, and driving.  There were mild effects on chores and shopping and moderate effects on exercise, sports, and recreation.  

Throughout the time period, the Veteran complained of give-way, pain, stiffness, weakness, locking episodes, swelling, and tenderness.  Testing showed no additional limitation of motion or pain upon repetitive knee movement.  Additionally, locking, pain, and swelling are considered within the 20 percent evaluation assigned herein.  Furthermore, there was a normal gait, no incapacitating episodes, and no evidence of uneven weightbearing.  Accordingly, there is no additional functional loss not contemplated in the 20 percent rating and an increased evaluation on this basis is not warranted.  

Consideration has also been given regarding whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities."  38 C.F.R. § 3.321(b)(1) (2011); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record).  An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards.  Floyd v. Brown, 9 Vet. App. 88, 94 (1996).  An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the veteran's service-connected disability.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization.  Thun, 22 Vet. App. at 115-116.  When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating.  Otherwise, the schedular evaluation is adequate, and referral is not required.  38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116.  

In this regard, the schedular evaluation in this case is not inadequate.  A rating in excess of 20 percent is provided for certain manifestations of the service-connected left knee disability but the medical evidence reflects that those manifestations are not present in this case.  Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disability, as the criteria assess range of motion, instability, and functional loss due to pain, swelling, fatigability, and weakness.  Accordingly, this issue need not be referred for consideration of an extraschedular rating.

In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim for an evaluation in excess of 20 percent, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

An evaluation of 20 percent, but no more, is granted, subject to the laws and regulations governing the payment of monetary benefits. 


REMAND

Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim.  Remand is required to obtain full compliance with the previous Board remand.

Remand is required because the examinations of record are insufficient upon which to base an appellate decision.  Littke v. Derwinski, 1 Vet. App. 90, 93 (1990) (noting that remand may be required if record before the Board contains insufficient medical information).  The Board remanded this issue in June 2011 because it appeared the Veteran's lumbar spine disability had worsened, there were unclear neurological findings, and the 2009 examination had relied on a prior MRI rather than conducting a new MRI.  The Board notes that the Veteran has consistently reported pain that radiated down his bilateral legs, and a 2009 MRI noted a bulging lumbar spine disc with central annular tear.  The 2011 examination report, however, does not fully address the neurological symptoms asserted by the Veteran.  Although the examiner diagnosed lumbar strain, no radiculopathy or sciatica noted, an MRI was not conducted, although the sensory examination was normal.  Additionally, the Veteran's representative has asserted that the examination is not adequate as it conflicts with prior findings and does not provide comment on the 2009 MRI.  Accordingly, the Board finds that a new examination is warranted.  

Accordingly, the case is REMANDED for the following action:

1.  Contact the appropriate VA Medical Center and obtain and associate with the paper or virtual claims file all outstanding records of treatment.  If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file.  

2.  After any additional records are associated with the paper or virtual claims file, provide the Veteran with an appropriate examination to determine the severity of the service-connected lumbar spine disability.  The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review.  If the examiner does not have access to electronic medical records, relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review.  Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis.  An explanation for all opinions expressed must be provided.  If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and an explanation provided for that conclusion.  The examiner must record all pertinent medical complaints, symptoms, and clinical findings, in detail.  Any indicated special diagnostic tests that are deemed necessary for an accurate assessment must be conducted.  

The examiner must state whether there is any evidence of favorable or unfavorable ankylosis of the spine, and determine the range of motion of the Veteran's lumbar spine, in degrees, noting by comparison the normal range of motion of the lumbar spine.  It must also be determined whether there is weakened movement, excess fatigability, or incoordination attributable to the service-connected lumbar spine disability, expressed in terms of the degree of additional range of motion loss or favorable or unfavorable ankylosis due to any weakened movement, excess fatigability, or incoordination.  Finally, an opinion must be stated as to whether any pain found in the lumbar spine could significantly limit functional ability during flareups or during periods of repeated use, noting the degree of additional range of motion loss during flareups.

The examiner must also report any associated neurological complaints or findings attributable to the Veteran's service-connected lumbar spine disability, including any noted as a result of an MRI, nerve conduction studies (NCS), and/or electromyography (EMG) studies.  The examiner must address the August 2009 MRI report.  If diagnostic testing such as MRI, EMG, or NCS are deemed not necessary, the examiner must provide an explanation for this determination.  In providing this explanation, the examiner must address the Veteran's ongoing assertions of radiating pain and numbness.  It must also be noted whether the Veteran has intervertebral disc syndrome; if so, the examiner should state whether the Veteran experiences incapacitating episodes, as defined by 38 C.F.R. § 4.71, and the frequency and total duration of such episodes over the course of the past 12 months.

3.  After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated.  If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative.  After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

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 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).




______________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs