Citation Nr: 1301847 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 07-20 345 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to a compensable rating for residuals of renal trauma, for the period from August 3, 2006 to November 9, 2011. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD M. H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from June 1974 to June 1978. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In a July 2007 written statement the Veteran's representative withdrew the Veteran's request for a hearing before the Board. This appeal was previously before the Board in September 2011. The Board remanded the claims so that treatment records could be requested, and the Veteran could be scheduled for VA examinations. The case has been returned to the Board for further appellate consideration. In September 2012, the RO granted the Veteran's claims of entitlement to service connection for posttraumatic stress disorder and hypertension. The RO additionally provided a 100 percent rating for residuals of renal trauma, effective November 10, 2011. The grants of service connection represent the full grant of the claims on appeal, and thus those claims are no longer before the Board. While the RO granted the maximum available rating, the rating is staged, and does not include the maximum rating available prior to November 10, 2011. The United States Court of Appeals for Veterans Claims (the Court) has held that a rating decision issued subsequent to a notice of disagreement which grants less than the maximum available rating does not "abrogate the pending appeal." AB v. Brown, 6 Vet. App. 35, 38 (1993). Therefore, the Veteran's appeal for a compensable rating for residuals of renal trauma prior to November 10, 2011 remains open. Also in September 2012, a service representative (handwriting illegible) noted that the Veteran wished to withdraw his appeal related to a "9/13/2012 Appeals Management Center letter." The only letter from the AMC dated September 13, 2012 is an issuance of a Supplemental Statement of the Case addressing the Veteran's back disability claim. The Board notes, however, that subsequent to this request to withdraw his back disability claim, in November 2012, another representative (different signature) provided an informal hearing presentation which continued to address the back disability as on appeal. As the written withdrawal was vague, the Board will continue to address the back disability as a claim on appeal. The issue of entitlement to service connection for a back disability 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. FINDINGS OF FACT 1. From August 3, 2006 to August 22, 2010, the Veteran's service-connected residuals of renal trauma manifested by renal dysfunction with hypertension at least 10 percent disabling under diagnostic code 7101. His residuals of renal trauma included awakening to void once per night. 2. From August 23, 2010 to November 9, 2011, the Veteran's service-connected residuals of renal trauma manifested by renal dysfunction with mild edema with BUN of 59mg% and creatine of 6.07mg% and symptoms of nausea, vomiting, fatigue, lethargy, and weakness. His residuals of renal trauma also included daytime voiding intervals of greater than three hours, and awakening to void three times per night. CONCLUSIONS OF LAW 1. The criteria for a rating of 30 percent, for residuals of renal trauma, from August 3, 2006 to August 22, 2010, have been met. 38 U.S.C.A §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Codes 7517, 7540 (2012). 2. The criteria for a rating of 80 percent, for residuals of renal trauma, from August 23, 2010 to November 9, 2011, have been met. 38 U.S.C.A §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Codes 7517, 7540 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Proper notice from VA must inform the Veteran 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 Veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). A September 2006 letter supplied notice in accordance with the statutory and regulatory notice requirements. Additionally, it advised the Veteran of how to substantiate disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). Thus, the Board determines that no further notice is needed for the claim on appeal. The duty to assist the Veteran has been satisfied in this case. The RO has obtained the Veteran's service treatment records, identified VA and private treatment records, and disability records from the Social Security Administration (SSA). 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Moreover, the Veteran has been afforded VA examinations that are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Specifically, the August 2010 and November 2011 VA examiners took into account the Veteran's statements and treatment records, which allowed for a fully-informed evaluation of the claimed disability. Id. As such, there is no indication in the record that additional evidence relevant to the issues being decided herein is available and not part of the record. See Pelegrini, 18 Vet. App. at 120. 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 (2006); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating 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. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function, will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). 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. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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). The Veteran's service-connected residuals of renal trauma is currently noncompensably rated prior to November 9, 2010 under 38 C.F.R. § 4.115b, Diagnostic Code 7599-7540. He complains of symptoms of urinary frequency, kidney problems, pain in his lower back, weakness, and hypertension that warrant a higher rating. Regulations provide that when the disability being rated is not specifically provided for in the Rating Schedule, it will be rated under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. Further, the provisions of 38 C.F.R. § 4.27 provide that unlisted disabilities requiring rating by analogy will be coded with the first two numbers of the schedule provisions for the most closely related body part and "99." Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after a hyphen. Diagnostic Code 7540 contemplates disseminated intravascular coagulation with renal cortical necrosis, and directs rating based upon renal dysfunction. 38 C.F.R. § 4.11 for ratings of the genitourinary system provides disability criteria related to disabilities related to renal or voiding dysfunctions, infections or a combination of these. When a diagnostic code refers to a specific area of dysfunction (as DC 7540 directs rating based upon renal dysfunction), only the predominant area of dysfunction shall be considered for rating purposes. Only the predominant area of dysfunction is to be considered for rating purposes to avoid violating the rule against the pyramiding of disabilities. 38 C.F.R. §§ 4.14, 4.115a. Voiding dysfunction is rated under the three subcategories of urine leakage, urinary frequency, and obstructed voiding. 38 C.F.R. § 4.115a. For the sake of brevity, the Board will not list the rating criteria for urine leakage and obstructed voiding as the claims file does not show the Veteran suffers from these symptoms. Urinary frequency encompasses ratings ranging from 10 to 40 percent. A 10 percent rating contemplates daytime voiding interval between two and three hours, or awakening to void two times per night. A 20 percent rating contemplates daytime voiding interval between one and two hours, or awakening to void three to four times per night. A 40 percent rating contemplates a daytime voiding interval less than one hour, or awakening to void five or more times per night. 38 C.F.R. § 4.115a. Renal dysfunction manifested by albumin and casts with a history of acute nephritis; or, hypertension at a noncompensable level under DC 7101 warrants a noncompensable rating. Renal dysfunction with constant or recurring albumin with hyaline and granular casts or red blood cells, or transient or slight edema or hypertension at least 10 percent disabling under DC 7101 warrants a 30 percent evaluation. Renal dysfunction resulting in albuminuria with some edema, or definite decrease in kidney function, or hypertension at least 40 percent disabling under DC 7101 warrants a 60 percent evaluation. Renal dysfunction manifested by persistent edema and albuminuria with BUN 40 to 80mg%, or creatine 4 to 8mg%, or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion, warrants an 80 percent evaluation. Finally, renal dysfunction that requires regular dialysis, or precludes more than sedentary activity from one of the following: persistent edema and albuminuria; or BUN more than 80mg%; or creatinine more than 8mg%; or markedly decreased function of kidney or other organ systems, especially cardiovascular, warrants a 100 percent evaluation. 38 C.F.R. § 4.115a. Hypertension is rated in accordance with 38 C.F.R. § 4.104, Diagnostic Code 7101. For VA rating purposes, the term hypertension means that the diastolic blood pressure is predominantly 90 mm or greater. Isolated systolic hypertension means that the systolic blood pressure is predominantly 160 or greater with a diastolic blood pressure of less than 90 mm. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. A 10 percent rating is warranted when the diastolic pressure is predominantly 100 or more, or; when the systolic pressure is predominantly 160 or more. A 10 percent rating is also warranted when the Veteran has a history of a diastolic pressure of 100 or more and requires continuous medication for control. A 20 percent rating is warranted for hypertension, manifested by a diastolic pressure of predominantly 110 or more and a systolic pressure of 200 or more. A 40 percent rating is warranted for hypertension, manifested by a diastolic pressure of predominantly 120 or more. The Veteran's treatment records include symptoms of urinary frequency and renal dysfunction. Diagnostic Code 7706 provides a 20 percent rating for a splenectomy. Factual Background and Analysis By way of history, in December 1977 the Veteran was a passenger in a motor vehicle accident and sustained a ruptured spleen and left retro peritoneal hematoma secondary to renal fracture. He underwent a splenectomy. He had an elevated blood pressure of 150/100 at separation, but was noted to have normotensive pressure of 120/82 during a consultation. In a December 1978 rating decision, the Veteran was provided a 30 percent rating for splenectomy under DC 7706, and a noncompensable rating for residuals of renal trauma under DC 7599. The veteran filed the current claim for an increased rating for residuals of renal trauma on August 3, 2006. VA treatment records from June 2006 note included liver function tests. He was noted to have albumin of 4.3, protein of 7.9, BUN of 26, and creatine of 2.0 (his BUN and creatine were marked H for high). He did not have any nitrates in his urine. He was noted to have high blood sugars, although he was not yet in the diabetic range. A physical examination the day prior did not show any edema, and the Veteran reported that his sleep, appetite, weight, and eliminations were normal. He denied nocturia. During a September 2006 VA examination for his disseminated intravascular coagulation he reported being diagnosed with chronic renal insufficiency in the past year. He reported no exacerbations of the disease, and no further bleeding since his initial treatment. He also denied fatigability and weakness. Physical examination did not reveal swelling in his hands or feet. Private treatment records from September 2006 include complaints of sleeplessness. He does not further describe this symptom, but the report contains complaints of psychiatric symptoms and back pain in the same paragraph. He is noted to have a brother on dialysis. During an evaluation of his functional ability for the benefit of a SSA disability claim, the Veteran reported insomnia. In February 2007, the Veteran was afforded a VA genitourinary examination. The examiner reviewed the claims file and noted the Veteran suffered a laceration to his left kidney and underwent a splenectomy secondary to a motor vehicle accident. He was noted to have renal failure with a creatine of 2.3 measured in February 2007. The Veteran offered no specific complaints other than to state he was on medication for his kidneys. He denied kidney stones and bladder infections. He was not tender during physical examination. The examiner noted the Veteran was a very poor historian. The examiner opined that the Veteran's renal insufficiency was not a result of his in-service renal trauma. In his April 2007 notice of disagreement, the Veteran argued that he was entitled to a higher rating for his renal trauma because he suffered from hypertension. The Board notes that the September 2012 rating decision which granted service connection for hypertension assigned a rating of 10 percent, effective August 3, 2006. In June 2007, the Veteran's creatine was 2.2 and he continued to have proteinuria. A physical examination did not reveal edema. He reported his sleep, weight, appetite and elimination were normal and he denied nocturia. By June 2008, the Veteran's renal symptoms increased slightly. He continued to report normal sleep (although complaining of sleep problems to mental health), appetite, weight and elimination. However, he did report nocturia once per night. A February 2009 renal ultrasound was normal. Blood tests revealed a BUN of 35, marked as high. He was assessed with multifactoral renal insufficiency, to include as affected by uncontrolled diabetes, uncontrolled hypertension and gout. In March 2009, a VA nephrology consultation noted the Veteran was a poor historian and the physician could not get a clear understanding of his diabetes and hypertension medication use. His creatine was noted to be 2.7 in February 2009, which was elevated. As he also had proteinuria, he was noted to likely have "diabetic kidney disease." His abdomen was nontender, and he did not have edema of the extremities. He was noted to have roughly 50 percent kidney function. The physician attempted to make medication recommendations, which included treatment for his blood pressure, a diuretic, cholesterol medication, and a simpler daily diabetes medication. The physician also discussed the possibility of future dialysis if the Veteran's kidney symptoms continued downhill. In August 2010, the Veteran was afforded an additional VA genitourinary examination. He complained of nausea, vomiting, fatigue, lethargy, and weakness. He also complained of numerous urinary symptoms, including: weak stream, dribbling, straining to urinate, and hesitancy/difficulty starting stream. He denied urinary leakage and a history of urinary tract infections. He indicated he had a greater than 3 hour interval between daytime voidance, but that he voided three times per night. On physical examination he did not have abdominal tenderness, but he did have mild bilateral edema. Laboratory findings taken congruent to the examination showed his creatine was 6.07 and his BUN was 59. The examiner noted that the Veteran's chronic kidney disease was likely the result of his poorly controlled diabetes mellitus. In November 2011, pursuant to the September 2011 Board remand, the Veteran was afforded an additional VA genitourinary examination. Based upon this examination, the Veteran was provided a 100 percent rating for residuals of renal trauma. In a November 2012 Informal Hearing Presentation, the Veteran's representative argued that while the Veteran was in general good health during the 2006 and 2007 VA examination, the August VA examination showed increased symptoms. The representative argued the Veteran was entitled to at least an 80 percent rating for his residuals of renal trauma from August 23, 2010 (the date of the VA examination). August 3, 2006 to August 22, 2010 As noted above, in September 2012, the AMC granted entitlement to service connection for hypertension with a 10 percent rating effective August 3, 2006. A review of the treatment records available in the claims file show that the Veteran had systolic pressure of 160 or more on several occasions in 2006, and he was on medication to control his hypertension. As such, the 10 percent rating for hypertension under DC 7101 is supported by evidence as early as June 2006. The Veteran was not noted to have albumin with hyaline and granular casts or red blood cells, or edema prior to his August 2010 VA examination. Nonetheless, a 30 percent rating is warranted for renal dysfunction with hypertension of at least 10 percent disabling under DC 7101. As such, from August 3, 2006 to August 22, 2010, a rating of 30 percent is granted. A higher rating for his period is not warranted under the renal dysfunction or voiding dysfunction criteria. He did not have constant albuminuria, edema, or hypertension at a 40 percent level under DC 7101 during this time period. His creatine remained below 3.0, and his BUN remained below 40 during this time period. In June 2008, the Veteran complained of nocturia once a night. During prior renal treatment he denied urinary symptoms, including nocturia. Unfortunately, the February 2007 VA examination did not include information about voiding function. The Veteran continuously denied urinary tract infections and the use of absorbent materials. As such, a rating in excess of 30 percent for the period from August 3, 2006 to August 22, 2010 is not warranted. From August 23, 2010 to November 09, 2011 The August 23, 2010 VA examination revealed the Veteran had creatine levels of 6.07 and BUN of 59. He additionally complained of nausea, vomiting, fatigue, lethargy, and weakness. As the Veteran's representative noted, these symptoms meet a rating of 80 percent under 38 C.F.R. § 4.115a. A rating in excess of 80 percent from August 23, 2010 to November 9, 2011 is not warranted. The rating criteria for voiding dysfunction do not provide a rating in excess of 60 percent. His chronic kidney disease was noted to severely impact many of his daily activities, but moderately impacted his ability to bath, dress, toilet, and groom himself. He had only mild bilateral edema, and he did not have nephritis or cardiovascular symptoms. As the evidence does not show that his renal dysfunction required regular dialysis, precluded more than sedentary activity due to edema and albuminuria or his BUN was greater than 80, or creatine greater than 8, or that he suffered markedly decreased kidney or other organ system function, he is not entitled to a rating in excess of 80 percent from August 23, 2010 to November 9, 2011. Extra-Schedular Ratings and TDIU Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27. However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extra-schedular rating. 38 C.F.R. § 3.321(b). 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 evaluations for that service-connected disability are inadequate, a task performed either by the RO or the Board. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disabilities with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Here, the Veteran's disability picture is not so unusual or exceptional in nature as to render the rating assigned rating inadequate. The Veteran's service-connected residuals of renal trauma is evaluated pursuant to 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Codes 7599-7540. The associated criteria specifically contemplate the level of occupational and social impairment caused by this disability. Id. The symptoms of the Veteran's residuals of renal trauma are all addressed within the renal dysfunction and voiding dysfunction criteria. While he is rated based upon his renal dysfunction only, as directed by 38 C.F.R. § 4.115b, the Board addressed the voiding dysfunction criteria in search of higher yet ratings for the Veteran. When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that manifestations of the Veteran's service-connected disability is congruent with the disability picture represented by the rating assigned herein. Higher evaluations are provided for certain manifestations of this disability, but the medical evidence demonstrates that those manifestations are not present in this case. A claim for entitlement to a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The present increased rating claims differ, however. A formal claim for TDIU was considered and denied by the RO in March 2007 rating decision from which the claims on appeal arose. Nothing in Rice suggests that the Veteran's disagreement with a decision on an increased rating claim must be read to also include a disagreement with the denial of TDIU. Therefore, in the circumstances of this case where the Veteran chose to not appeal a denial of TDIU, the Board declines to apply Rice and take jurisdiction over a TDIU claim. ORDER A rating of 30 percent, and no higher, for residuals of renal trauma, from August 3, 2006 to August 22, 2010, is granted. A rating of 80 percent, and no higher, for residuals of renal trauma, from August 23, 2010 to November 9, 2011, is granted. REMAND Unfortunately, a remand is required in regards to the Veteran's service connection claim. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. Such development would ensure that his due process rights, including those associated with 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326, are met. The Veteran contends that he sustained a back injury as a result of the in-service motor vehicle accident which lacerated his kidney. He states that his back pain has continued since service. The Veteran filed his initial claim for a back disability upon discharge from service in June 1978. During a December 1978 VA examination he complained of low back pain since the December 1977 accident. The physician noted the Veteran's pain was largely in the left flank. X-rays did not reveal a lumbar spine diagnosis. In October 1986, he again complained of back pain "for years." There are no treatment records between 1978 and 1986 or between 1986 and 2006, pertaining to the spine, contained in the claims file or in Virtual VA (Virtual VA does not contain treatment records). In February 2006, the Veteran complained of neck pain with onset six months prior. A February 2009 x-ray revealed mild osteoarthrosis. A September 2006 private treatment record, provided for the benefit of the Veteran's SSA disability claim, included a subjective history. The Veteran reported injuring his back in service, and again injuring his back while working in a navy shipyard post-service. He reported he was "out of work" for one year as a result of his second spine injury. In September 2011, the Board directed the AMC to request the Veteran provide a list and releases for all treatment he had received since service. In response to the AMC's October 2011 letter, the Veteran indicated he had received all of his treatment from the VA in Missouri. The Board notes that the Veteran did not live in Missouri until the 1990s. As the claim is being remanded, an additional request should be made for treatment records. Also, any outstanding VA treatment records should be associated with the claims file or Virtual VA. The Board also requested the Veteran be provided a VA spine examination to establish the etiology of any current spine disability. In November 2011, the Veteran was afforded an examination. The examiner opined that the Veteran's arthrosis was less likely than not incurred in or caused by his claimed in-service injury because arthrosis is a natural progression. In November 2012, the Veteran's representative argued that the November 2011 VA examination was inadequate because the examiner did not address the Veteran's contentions that his back pain began in service and continued thereafter. The Board additionally notes that while the examiner provided a rationale for her opinion, she did not address the Veteran's in-service trauma when providing her opinion. On remand, an additional opinion, which addresses the in-service trauma and the Veteran's contentions should be obtained. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify all VA and non-VA providers of medical care since service. Of particular interest are any treatment records from 1978 to 2006. While the Veteran has indicated all of his treatment was provided by the VA in Missouri, the record indicates that he did not move to Missouri until the 1990s. The AMC should ensure that all available VA treatment records are available in the claims file or in Virtual VA. All adequately identified sources of treatment should be contacted and records requested. Efforts to obtain identified records should be fully documented in the record. If VA is unable to secure any identified records, it must notify the Veteran and (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts that VA made to obtain those records; (c) describe any further action to be taken by VA with respect to the claim; and (d) notify him that he is ultimately responsible for providing the evidence. 38 U.S.C.A. § 5103A(b)(2); 38 C.F.R. § 3.159(e)(1). The below development should not be accomplished until records identified by the Veteran have been obtained, or the AOJ has concluded that they are not available. 2. After all available records have been obtained, the claims file should be returned to the November 2011 VA examiner, if available, for a requested addendum opinion. The examiner should review the claims file, Virtual VA and her November 2011 examination report. The examiner should specifically review the Veteran's complaints of ongoing back pain from service to the present, including the December 1978 VA examination. Following review, the examiner should provide an opinion regarding whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) the Veteran's current low back disability is a result of his active duty service, to include the December 1977 motor vehicle accident. A discussion of the complete rationale for all opinions expressed should be included in the examination report, to include reference to pertinent evidence where appropriate. 3. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. 4. Readjudicate the Veteran's claim, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. 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. 2012). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs