Citation Nr: 1304983 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 11-08 719 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to separate disability evaluations for neurological impairment of the lower extremities resulting from service-connected low back disability (for the period from August 24, 2005 to October 31, 2011). 2. Entitlement to an initial disability evaluation in excess of 10 percent for right lower extremity radiculopathy. 3. Entitlement to an initial disability evaluation in excess of 10 percent for left lower extremity radiculopathy. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESSES AT HEARING ON APPEAL The Veteran (Appellant) and J. B. ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from July 1970 to May 17, 1971, and from October 1974 to November 1986. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Indianapolis, Indiana, which granted service connection for a low back disability and assigned a 20 percent initial rating effective March 1, 2007. The Veteran and J. B. presented testimony at a Board hearing in October 2011 chaired by the undersigned Veterans Law Judge, seated in Indianapolis, Indiana. A transcript of the hearing is of record. In a February 2012 decision, the Board assigned an effective date of August 24, 2005, for the grant of service connection for a low back disability and assigned an initial rating of 40 percent for the service-connected low back disability from August 24, 2005, in accordance with 38 C.F.R. § 4.71a, Diagnostic Code 5237. In the February 2012 decision, the Board also addressed why a separate rating on the basis of neurological abnormalities was not appropriate. In a September 2012 Joint Motion for Partial Vacatur and Remand, the Veteran, at that time represented by a private Attorney, and VA Office of General Counsel (hereinafter, known as the parties) requested that the portions of the February 2012 Board decision which assigned the effective date of August 24, 2005 for service connection for the low back disability, and granted a higher initial disability rating to 40 percent (for the entire rating period from August 24, 2005), remain undisturbed. The parties agreed that a partial remand was warranted on the remaining question of rating in excess of 40 percent because the Board failed to provide adequate reasons and bases for not granting a separate rating or rating based upon objective neurologic abnormality related to the Veteran's service-connected low back disability. The parties agreed that a remand was warranted to readjudicate the question of entitlement to separate neurological ratings of the lower extremities under Note (1) following Diagnostic Code 5237, specifically to include consideration of whether the medical evidence of record was sufficient to resolve the question of whether the Veteran had any objective neurological abnormalities associated with the service-connected lumbar spine disability. The parties to the joint motion also agreed that, even if on remand the Veteran's neurological symptomatology was not found to be associated with his service-connected spinal disability, the Board should address whether the Veteran had otherwise raised a claim for service connection for a neurologic disability on any other basis (theory of entitlement). In September 2012, the United States Court of Appeals for Veterans Claims (Court) ordered that the motion for remand be granted, and that the part of the Board's decision which denied entitlement to an initial rating in excess of 40 percent for a low back disability be remanded pursuant to 38 U.S.C.A. § 7252(a) for actions consistent with the terms of the joint motion. While the above claim was pending, in October 2011, the Veteran also filed a claim for compensation (service connection) for neuropathy in his upper legs and lower back as due to the in-service injury (direct service connection theory). Following a June 2012 VA examination, at which time the examiner opined that it was at least at least as likely as not that the Veteran's lower extremity radiculopathy was related to his service-connected lumbar disability, in a July 2012 rating determination, the RO granted service connection for right and left lower extremity radiculopathy as secondary to the service-connected low back disability, and assigned separate 10 percent (initial) disability ratings, effective October 31, 2011. Thereafter, in a July 2012 statement in support of claim, the Veteran requested that someone review the disability evaluations assigned for the left and right lower extremity radiculopathy. The Veteran indicated that it was his belief that he should have been assigned 20 percent disability evaluations. The Board accepts his statement as a notice of disagreement with the assigned 10 percent initial disability evaluations for left and right lower extremity radiculopathy. To date, a statement of the case has not been issued. As the 10 percent separate ratings assigned for lower extremity neurological impairment (radiculopathy) were made effective only from October 31, 2011, rather than the entire period of rating of low back disability from August 24, 2005 from which the question of separate ratings arose, there still remains an issue of whether separate (at least to 10 percent) ratings are warranted for the lower extremity radiculopathy for the rating period from August 24, 2005 to October 31, 2011. The Board has bifurcated the issue of initial rating for left and right lower extremity radiculopathy into questions of a) whether entitlement to a separate (at least 10 percent) neurological disability rating is warranted for the rating period from August 24, 2005 to October 31, 2011, and b) whether ratings in excess of 10 percent are warranted for left and right lower extremity radiculopathy for any period from August 24, 2005 to the present. The issue before the Board, arising from the original November 2009 rating determination, which was addressed by the parties in the September 2012 Joint Motion and the subsequent Court order, is whether the Veteran is entitled to a separate (10 percent) rating for neurological abnormalities of the lower extremities, which question now pertains only to the rating period from August 24, 2005 and prior to October 31, 2011, when separate 10 percent disability ratings have already been granted by the RO in July 2012, as the RO partially answered the separate rating for neurological disability question posed by the parties to the joint remand. The Board will address (and grant) the remaining aspect of this question of separate ratings for neurological disability (from August 24, 2005 to October 31, 2011) in the merits portion of this decision. The combined adjudications of the RO and the Board fully address, and answer in the affirmative, the remanded rating question of whether separate ratings are warranted for neurological disability of the lower extremities secondary to the service-connected low back disability. As to the July 2012 rating determination, wherein the RO granted service connection for right and left lower extremity radiculopathy and assigned 10 percent disability evaluations, the Board is in agreement with the grant of service connection for these disabilities. Moreover, as the part of February 2012 Board decision that addressed whether a separate neurological evaluation was warranted was vacated by the Court order, the questions of separate rating for neurological disorder of the lower extremities have been pending since the date of the Veteran's initial filing for service connection for a low back disability, which was received on August 24, 2005. In the merits portion of this Board decision, as required by the Court order, the Board has addressed (and granted) separate disability ratings of 10 percent for neurological impairment for the entire rating period from August 24, 2005, which is the date for the grant of service connection for the low back disability. As the issue of what specific disability evaluation is warranted has been separately adjudicated by the RO, and will be separately appealable, there is no prejudice to the Veteran because the Board, in this decision, is only adjudicating whether separate (at least 10 percent) disability ratings are warranted for neurologic disability (for the period from August 24, 2005 to October 31, 2011), and is not adjudicating the remaining question of whether higher disability ratings than 10 percent may be assigned for the neurologic disabilities for any period. The Board has bifurcated the separate rating issue because to do so at this time is favorable to the Veteran because it allows for the Board's finding in this decision that separate ratings of 10 percent were warranted for the period from August 24, 2005 to October 31, 2011, thus resulting in grant of partial benefit and payment of this aspect of the compensation benefits from 2005 while development for the remaining aspect of the separate rating issue continues on remand. Such bifurcation of a claim generally is within the VA Secretary's discretion. See Tyrues v. Shinseki, 23 Vet. App. 166, 176 (2009) (en banc) (holding that it is permissible for the VA Secretary to bifurcate a request for benefits on the basis of different theories of entitlement), aff'd 631 F.3d 1380 (Fed. Cir. 2011). The issues of entitlement to initial disability evaluations in excess of 10 percent for left and right lower extremity radiculopathy are remanded to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDING OF FACT Neurological abnormalities (radiculopathy) of the right and left lower extremities, in the form of radiculopathy associated with the service-connected low back disability, have been present since the initial claim for service connection for a low back disability that was received on August 24, 2005. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for separate disability evaluations for left and right lower extremity radiculopathy have been met for the period from August 24, 2005 to October 31, 2011. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.71a, 4.123, 4.124, 4.124a, Diagnostic Codes (DCs) 5235-5243, 8520 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). The Court has also held that that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Because the Veteran's appeal arises from his disagreement with the initial rating following the grant of service connection, no additional notice is required. The Court and the United States Court of Appeals for the Federal Circuit (Federal Circuit) have held that, once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement). The Board also finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations. The record in this case includes service treatment records, VA and private treatment records, VA and private examination reports, and lay evidence. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the claimant. The Veteran was afforded VA examinations in December 2007, July 2010, and June 2012. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Given that the examination reports set forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations, the Board finds the examinations to be adequate for rating purposes. The examination reports included the Veteran's history of injury, and relevant reported radiculopathy symptoms of radiating pain and burning sensation, neurological clinical measures and findings such as deep tendon reflex testing, light touch sensory exam, MRI, and EMG, diagnoses of lumbar radiculopathy, and opinion of relationship between the radiculopathy and the service-connected low back disability. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and arguments presented by his representative. He also appeared at a Travel Board hearing before the undersigned Veterans Law Judge in October 2011. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide the appeal. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to assist the Veteran in substantiating this claim. Separate Neurological Ratings The Veteran contends that he has a neurological disorder of the lower extremities for which separate disability ratings are warranted. He contends that his service-connected back disability has caused impingement of the nerves that have resulted in radiculopathy, as indicated by symptoms of radiating pain, numbness, and weakness in the lower extremities. As previously indicated, as separate 10 percent disability ratings for left and right lower extremity radiculopathy have been granted for the period from October 31, 2011, the remaining aspect of this separate rating question is whether separate 10 percent disability ratings for left and right lower extremity radiculopathy are warranted for the (low back) rating period from August 24, 2005 to October 31, 2011. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. See 38 C.F.R. § 4.3 (2012). Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2012). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, are to be rated under an appropriate diagnostic code. Neurological manifestations are generally rated by analogy to neuralgia of the sciatic nerve under 38 C.F.R. § 4.124a, Diagnostic Code 8520, for paralysis of the sciatic nerve. See 38 C.F.R. §§ 4.20, 4.124a (2012). Under Diagnostic Code 8520, disability ratings of 10 percent, 20 percent, and 40 percent are assignable for incomplete paralysis which is mild, moderate or moderately severe, respectively. A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a. The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See Note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a). After a review of all the evidence, lay and medical, the Board finds that the evidence is at least in equipoise on the question of whether neurological abnormalities (radiculopathy) of the right and left lower extremities, in the form of radiculopathy associated with the service-connected low back disability, have been present since the initial claim for service connection for a low back disability that was received on August 24, 2005. Resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for separate disability evaluations of 10 percent for left and right lower extremity radiculopathy have been met from August 24, 2005 to October 31, 2011. 38 C.F.R. §§ 3.102, 4.3, 4.7. In conjunction with his claim, the Veteran submitted the results of a May 26, 2006 MRI of the lumbar spine. History noted at the time of testing revealed the Veteran reporting lower back pain and bilateral anterior thigh numbness. MRI results revealed degenerative disc disease, worst at L5-S1 level, with right S1 nerve root impingement at this level. At the time of a June 2006 EMG and nerve conduction study, a history of low back pain and bilateral thigh numbness on the right and left was reported. The examiner indicated that the study was normal with no definite evidence of lumbosacral radiculopathy. At the time of a June 2006 follow-up consultation, the Veteran reported having had numbness in his anterior thighs for the past 10 years, bilaterally. He reported that there was no pain on the anterior thigh, just numbness and occasionally some burning and tingling. The examiner noted the results of the May 2006 MRI, which revealed S1 nerve root impingement, and the results of the June 2006 EMG/nerve conduction studies. Neurological examination revealed sensation to be intact except for decrease in the bilateral anterior thighs and the right medial foot. The examiner indicated that the Veteran appeared to have neuropathic pain in the bilateral anterior thighs with no clear radicular type signs or symptoms. The examiner stated that the numbness without pain in the anterior thighs, bilaterally, might be related to meralgia paresthetica. On June 26, 2006, the Veteran was given bilateral L4 and L5 transforaminal injections, a right S1 transforaminal epidural injection, and a lumbar epidurogram without dural puncture. Pre-operative and post-operative diagnoses were lumbar radiculitis and lumbar herniated nuclear pulposus. At the time of a July 2006 visit, the Veteran again reported having numbness in the anterior thighs, bilaterally. He also reported having some burning and tingling. Neurological examination revealed sensation was intact to light touch except for slight decrease in the bilateral anterior thigh. It was the examiner's assessment that the Veteran had neuropathic-type pain in the bilateral anterior thighs. The examiner again stated that the numbness without pain in the anterior thighs might be related to neuralgia paresthetica. At the time of a December 2007 VA examination, the VA examiner indicated that the Veteran had brought with him the results of the May 2006 MRI which showed moderate stenosis right lateral recess with S1 nerve root impingement and L5-S1 right neural nerve root impingement. The VA examiner indicated that there was a history of numbness and paresthesias. He further reported that the Veteran had a history of tingling and numbness in the anterior thighs. Physical examination of the lower extremities revealed decreased sensation as to pain (pinprick) and light touch on the left and right. The examiner specifically indicated that the Veteran had decreased light touch of the anterior thigh and no sharp sensation on the distal anterior thigh and posterior calf on the left, and decreased light touch on the anterior thigh along with decreased sharp sensation on the lateral thigh and no sharp sensation on the posterior calf on the right. At the time of an April 2009 hearing, the Veteran reported that during service he had an impinged nerve or pinched nerve in his lower back that would cause numbness from the penis area way down into his legs if he sat very long. He stated that the overall symptomatology related to his back had become progressively worse. A March 2010 VA MRI of the lumbar spine revealed mild bilateral neuroforaminal narrowing at the L3-4 and L4-5 levels. At the L5-S1 level there appeared to be a right subarticular disc protrusion associated with slight posterior displacement of the right S1 nerve. There was also mild right neural foraminal narrowing at this level. At the time of a July 2010 VA examination, a history of numbness, paresthesia, and leg/foot weakness was noted. When asked if the etiology of these symptoms was unrelated to the claimed disability, the examiner replied "no." Sensory examination for the left and right lower extremities was reported as normal. The examiner noted the results of the March 2010 MRI of the lumbar spine. He diagnosed the Veteran as having mild degenerative joint disease with most prominent changes to L5-S1 noted on x-ray. He also indicated that the MRI showed mild central canal stenosis L3-5 and right neural foraminal narrowing L5-S1 with slight posterior displacement of the S1 nerve associated with disc protrusion. At the October 2011 Board hearing, the Veteran testified that his legs physically constantly burned and indicated that if he stood up for very long they would feel like they were on fire. He reported that he had an impingement of the nerve. At the time of the June 2012 VA examination, the Veteran reported noticing radiculopathy in the mid 1990's. The Veteran also reported having radiculopathy and burning of the anterior thighs and the front of the lower legs. Sensory examination performed at that time revealed decreased sensation to light touch in the right and left lower leg as well as the toes and feet. The examiner also noted that the Veteran had mild paresthesias and/or dysesthesias in the right and left lower extremities and mild numbness in both lower extremities. She also reported that the sciatic nerve roots were affected on both sides. The June 2012 VA examiner observed that June 2012 EMG testing revealed moderate bilateral L5 radiculopathy, worse on right side; mild early right S1 radiculopathy; and concurrent mild to moderate peripheral demyelinizing polyneuropathy. The June 2012 VA examiner stated that the Veteran had radiculopathy that followed the L5 dermatome pathway, bilaterally, as well as S1 right neuropathy following the dermatome pathway. She indicated that these findings were confirmed by June 2012 EMG testing. The examiner assessed that lumbar radiculopathy was caused by disc material or arthritic material compressing a nerve and that arthritis was noted on the MRI findings and that EMG testing confirmed the nerve compression. The June 2012 VA examiner stated that the natural sequela of arthritis was to worsen over time, resulting in the increased symptoms the Veteran noted, increased pain and neuropathy; therefore, the opinion was that it was at least as likely as not that the Veteran's radiculopathy was due to his service-connected lumbar disability. The Board finds that the evidence is at least in equipoise on the question of whether the criteria for separate disability evaluations of at least 10 percent for left and right lower extremity radiculopathy have been met from August 24, 2005. History taken at the time of numerous outpatient visits and at the time of various VA examinations reveals the Veteran reporting a history of numbness/tingling in his anterior thighs for over a decade on many occasions. Moreover, the June 2012 VA examiner found that the Veteran's right and left lower extremity radiculopathy was at least as likely as not related to his service-connected low back disability. Among the factors cited in rendering the VA examiner's opinion were that the Veteran had radiculopathy that followed the L5 dermatome pathway, bilaterally, and S1 right neuropathy following the dermatome pathway. MRI results from as early as May 2006 indicate that the Veteran had degenerative disc disease, worst at L5-S1 level, with right S1 nerve root impingement at this level. In addition, diagnoses of lumbar radiculitis and lumbar herniated nuclear pulposus were rendered when the Veteran was given steroid injections in June 2006. Furthermore, physical examinations of the lower extremities have revealed decreased sensation as to pain (pinprick) and light touch on the left and right at the time of outpatient visits and VA examinations. Given the foregoing, and resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for separate compensable evaluations of 10 percent for radiculopathy of the right and left lower extremities have been met since August 24, 2005, as part and parcel of his claim for service connection for the low back disability. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7. ORDER A separate disability rating for left lower extremity radiculopathy of 10 percent, for the period from August 24, 2005 to October 31, 2011, is granted. A separate disability rating for right lower extremity radiculopathy of 10 percent, for the period from August 24, 2005 to October 31, 2011, is granted. REMAND As noted above, the RO, in its July 2012 rating determination, granted service connection for right and left lower extremity radiculopathy (as secondary to the service-connected low back disability) and assigned separate 10 percent disability evaluations from October 31, 2011. As the Board's February 2012 decision was vacated in part, specifically with regard to the neurological component, the claim for separate ratings for neurological disability has remained open since the Veteran's initial claim for service connection for his low back disorder, which was received on August 24, 2005. While the Board has found that separate (at least 10 percent) neurological evaluations for right and left lower extremity radiculopathy have been warranted since August 24, 2005, in July 2012 the Veteran expressed disagreement with the 10 percent initial disability evaluations assigned by the RO for the left and right lower extremity radiculopathy. To date, the RO has not issued a statement of the case as it relates to the 10 percent initial ratings (assigned in the June 2012 rating determination). The Board is required to remand the case for issuance of the statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). In light of the Board's decision herein to grant separate (and initial) ratings of 10 percent for an earlier period, from August 24, 2005 to October 31, 2011, the Veteran's notice of disagreement with the initial ratings of 10 percent is an expression of disagreement with all initial separate ratings of 10 percent, and is not limited to a specific time period; therefore, the notice of disagreement is adequate to express disagreement with the entire initial rating period, including with the earlier period of separate rating, which will include from August 24, 2005 to October 31, 2011 when the Board's current decision is implemented by the RO. See AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to a RO rating decision assigning a particular rating, and a subsequent RO decision assigns a higher rating that is less than the maximum available benefit, the pending appeal is not abrogated). For this reason, the statement of the case should address the issue of 10 percent initial ratings for separate ratings in excess of 10 percent for left and right lower extremity radiculopathy for the entire initial rating appeal period from August 24, 2005 to the present. Accordingly, the issues of initial ratings in excess of 10 percent for left and right lower extremity radiculopathy (for the entire initial rating period from August 24, 2005) are REMANDED for the following action: Issue a statement of the case on the issues of entitlement to initial evaluations in excess of 10 percent for left and right lower extremity radiculopathy (for the entire initial rating period from August 24, 2005). The issues should be certified to the Board only if a timely substantive appeal is received. The Veteran has the right to submit additional evidence and argument on the 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). ______________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs