Citation Nr: 1310558 Decision Date: 04/01/13 Archive Date: 04/11/13 DOCKET NO. 10-25 659 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Whether new and material evidence to reopen a claim for service connection for a disability of the right lower extremity, claimed as secondary to service-connected lumbar myositis, has been received. 2. Entitlement to service connection for a neurological disability of the right lower extremity, claimed as secondary to service-connected lumbar myositis. 3. Entitlement to service connection for a neurological disability of the left lower extremity, claimed as secondary to service-connected lumbar myositis. 4. Entitlement to a rating in excess of 60 percent for lumbar myositis. 5. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Christopher Loiacono, Agent WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1973 to May 1981. Historically, claims for service connection for disabilities of the right and left lower extremities, as secondary to lumbar myositis, were denied by the RO in April 2000. Although notified of both denials, the Veteran only appealed the denial of service connection for disability of the lower right extremity. In December 2002, the Board denied service connection for disability of the lower right extremity. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2009 rating decision in which the RO declined to reopen the Veteran's claims for service connection for a neurological disability of the right leg and for service connection for a neurological disability of the left leg, denied a rating in excess of 60 percent for lumbar myositis, and denied a TDIU. In June 2009, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in May 2010, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in November 2010. Although the substantive appeal was not timely filed within the required time frame, the Board accepts jurisdiction of the matters listed on the title page. The United States Court of Appeals for Veterans Claims (Court) held in Percy v. Shinseki, 23 Vet. App. 37 (2009), that the 60-day period in which to file a substantive appeal is not jurisdictional and VA may waive any issue of timeliness in the filing of a substantive appeal. Further, the Court explained that if VA treats an issue as if it had been part of a timely filed substantive appeal, VA waives any objections it might have had to the timeliness of filing. Percy, 23 Vet. App. at 46. Waiver is appropriate here because, although the Veteran did not file a timely substantive appeal, VA subsequently afforded him a hearing, certified his appeal to the Board, and notified him that the appeal had been docketed. In January 2011, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. During the hearing, the Veteran submitted evidence to the Board, along with a waiver of initial RO consideration of the evidence. See 38 C.F.R. §§ 20.800, 20.1304 (2012). The Veteran, through his agent, subsequently submitted additional evidence to the Board in March 2011; this evidence was also accompanied by a waiver. Id. Regarding characterization of the appeal involving disability of the right lower extremity, the Board points out that it must address the question of whether new and material evidence to reopen the claim for service connection has been received because this matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). In other words, the Board is required to first consider whether new and material evidence is presented before the merits of the claim can be considered. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Accordingly-and, given the Board's favorable disposition of the petition to reopen-the Board has characterized the appeal as to this disability as encompassing the first two matters set forth on the title page. Although the Board has characterized the appeal as including a petition to reopen a claim for service connection for a neurological disability of the right (italics added for emphasis) lower extremity, it notes that there is no final decision of record as to the claim for service connection for a neurological disability of the left lower extremity. The RO denied service connection for a neurological disability of the left lower extremity by a rating decision issued in April 2000 and the Veteran did not appeal that denial. However, in December 2000, he submitted evidence from a private physician in support of his claim. The evidence (an October 1999 MRI report and a statement of diagnosis) contained findings (compression of left nerve root at L4-L5 and diagnosis of radiculopathy) relevant to the claim for service connection for a left lower extremity disability secondary to lumbar myositis. Inasmuch as the evidence was relevant to the claim and was received within one year of the RO's April 2000 decision, the denial of his claim for service connection of this disability did not become final. See 38 C.F.R. § 3.156(b) (if new and material evidence is received within the relevant appeal period, the evidence is to be considered as having been filed in connection with the pending claim). See also Bond v. Shinseki, 659 F.3d 1362, 1368 (Fed. Cir. 2011); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). As the RO never considered the December 2000 evidence in connection with the claim for service connection for a neurological disability of the left lower extremity, the original claim has since remained pending; hence, the characterization of this claim as an original claim for service connection. The Board's decision to reopen the Veteran's claim for service connection for a neurological disability of the right lower extremity is set forth below. The claims for service connection for a neurological disability of the right lower extremity, service connection for a neurological disability of the left lower extremity, a higher rating for lumbar myositis, and a TDIU, are addressed in the remand following the order. VA will notify the Veteran when further action, on his part, is required. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the matter herein decided have been accomplished. 2. In an April 2000 rating decision, the RO denied service connection for disabilities of the right and left lower extremities, as secondary to lumbar myositis; the Veteran was notified of the denials and timely initiated an appeal as to service connection for disability of the right lower extremity. 3. In a December 2002 decision, the Board denied service connection for disability of the right lower extremity, secondary to lumbar myositis. 4. Evidence associated with the claims file since the December 2002 Board denial of the claim for service connection for disability of the right lower extremity includes new evidence that relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The December 2002 decision in which the Board denied service connection for disability of the right lower extremity is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1110 (2012). 2. As pertinent evidence received since the December 2002 denial is new and material, the criteria for reopening the claim for service connection for a neurological disability of the right lower extremity are met. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended, at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Given the favorable disposition of the Veteran's request to reopen the claim for service connection for a neurological disability of the right lower extremity, the Board finds that all notification and development action needed to render a fair decision on this aspect of the appeal has been accomplished. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). In this case, the Veteran's claim for service connection for disability of the right lower extremity was denied by the Board in a December 2002 decision. The evidence of record at the time of the Board's 2002 decision consisted of the Veteran's service treatment records, some private treatment records, VA treatment records, and the reports of VA examinations conducted in December 1981, April 1994, May 1996, June 1999, and December 2001. The Veteran's service treatment records reflect that, on multiple occasions, he reported experiencing pain in his lower back and bilateral hips. He also complained of bilateral leg numbness and was diagnosed with low back strain with "possible" right-sided sciatica. Prior to his discharge, he was seen at the orthopedic clinic and was assessed with degenerative disc disease at L-5 to S-1, possibly L-4 to L-5. After service, the Veteran underwent a VA spinal examination in April 1994. He reported experiencing low back pain with radiation to the right leg and was diagnosed with lumbar myositis with disc desiccation and bulging discs at L-5 to S-1 and L-4 to L-5. In April 1995, a private physician noted the Veteran's subjective complaint of right leg radiculopathy, but only diagnosed low back pain. The Veteran underwent VA spine examination again in May 1996 and reported low back pain with radiation to the anterior aspect of both legs. The 1996 examiner also diagnosed lumbar myositis with disc desiccation and bulging discs at L-5 to S-1 and L-4 to L-5. In June 1999, the Veteran underwent another VA examination. Although the Veteran reported low back pain with radiation to the right hip as well as the bilateral legs, the examiner only diagnosed lumbar myositis with disc desiccation and bulging discs at L-5 to S-1 and L-4 to L-5. In April 2000, the RO denied service connection for a disabilities of the right and left legs. The Veteran disagreed with the denial as to the right leg only and, in May 2000, mailed VA the report of a private October 2009 CT scan of his back revealing a small herniated nucleus pulposus compressing the left nerve root and thecal sac, predominantly on the left, at L-4 to L-5 as well as a disc at L-5 to S-1 bulging toward the right. The Veteran also mailed an April 2000 note from a private physician reflecting a diagnosis of discogenic disease with radiculopathy. A June 2001 private MRI was also subsequently associated with the claims file that showed bulging of the L-4 to L-5 and L-5 to S-1 discs with encroachment on the adjacent L-4 and L-5 spinal nerves. He was afforded another VA examination in June 2001. The examiner interviewed and examined the Veteran and opined that his right leg pain was due to referred pain from the discogenic disease. In the December 2002 decision, the Board denied the claim on the basis that he had no right leg disability other than sciatica, the evaluation of which was included in his back disability evaluation. As the Chairman did not order reconsideration of the Board's December 2002 decision, and no other exception to finality applies, the Board's decision is final as to the evidence of record and is not subject to revision on the same factual basis. See 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1110. However, under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the claimant. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In this case, the Veteran sought to reopen his claim for service connection for a neurological disability of the right leg in September 2008. For petitions to reopen filed on and after August 29, 2001, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decisionmakers and "material" evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new. As indicated by the regulation cited above, and by judicial case law, "new" evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not duplicative or "merely cumulative" of other evidence then of record. This analysis is undertaken by comparing the newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). Here, the last final denial of the claim for service connection for a right leg disability is the Board's December 2002. Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Pertinent evidence added to the claims file since December 2002 includes private and VA treatment notes as well as reports of VA examinations conducted in March 2007 and September 2008. The treatment notes include a December 2003 private MRI report showing a small right posterolateral annular fissure and mild foraminal stenosis as well as an August 2005 physical therapy note observing lower back pain with sensory impairment. In February 2009, the Veteran submitted the report of a private August 2008 MRI study which revealed mild to moderate encroachment of both neural foramina at L-4 to L-5 and bulging discs at L-4 to L-5 and L-5 to S-1 causing mass effect on spinal nerve roots. He also submitted the results of a private August 2008 EMG study showing motor mono-neuropathy of the right posterior tibial nerve, sensory mono-neuropathy of the right sural nerve, as well as sensory-motor peripheral neuropathies. The report of the study includes a notation that those findings are attributable to the spine disability, specifically at L-4 to L-5. The report of the August 2008 private EMG study indicates that the Veteran has peripheral neuropathies as well as motor and sensory mono-neuropathies that are attributable to his myositis provides a basis for reopening the claim for service connection for disability of the right lower extremity secondary to lumbar myositis. The Board finds that the evidence is "new" in that it was not before agency decisionmakers at the time of the December 2002 Board decision, and it is not duplicative or cumulative of evidence previously of record. Although the Veteran had been diagnosed, by some providers, as having radicular disability affecting the sciatic nerve due to myositis prior to December 2002, there was no evidence that he experienced peripheral neuropathy or other disturbances of the right posterior tibial nerve or right sural nerve, as the result of myositis, at that time. Moreover, this evidence is "material" in that it goes to the question of whether the Veteran has a neurological disability of the right lower extremity that is secondary to his service-connected back disability. This evidence, while certainly not conclusive, relates to an unestablished fact necessary to substantiate the claim for service connection for a right lower extremity disability (i.e., a current disability related to a service-connected disability), and thus, when presumed credible, also raises a reasonable possibility of substantiating the claim. See, e.g., Shade v. Shinseki, 24 Vet. App. 110 (2010). Under these circumstances, the Board concludes that the criteria for reopening the claim for service connection for a neurological disability of the right lower extremity are met. See 38 U.S.C.A. § 5108 ; 38 C.F.R. § 3.156. ORDER As new and material evidence to reopen the claim for service connection for a neurological disability of the right lower extremity as secondary to myositis, has been received, to this limited extent, the appeal is granted. REMAND As noted, the Board has reopened the claim involving disability of the right lower extremity; hence, de novo adjudication of the claim now appropriate. To avoid any prejudice to the Veteran, a remand for RO consideration of the merits of the claim for service connection , in the first instance, is warranted. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board also finds that additional development of the reopened claim, along with the other claims on appeal, is warranted. Pertinent to the lumbar spine, the Board notes that the Veteran was last afforded a VA examination for evaluation of his service-connected back disability in September 2008, more than four (4) years ago. He specifically noted in a May 2009 written statement that his spinal disability "has worsened since [his] last medical examination." Accordingly, the RO should arrange for further examination of the Veteran in regard to his claim for an increased rating. Pursuant to 38 C.F.R. § 3.327(a) (2012), examinations will be requested whenever VA determines that there is a need to determine the exact severity of a disability. See also 38 C.F.R. § 3.159 (2012). The Veteran also was afforded a peripheral nerve examination in September 2008; however, the examination results are not adequate to resolve the claims for service connection for neurological disabilities of the left and right lower extremities. The examiner noted that bulging discs at L-4 to L-5 and L-5 to S-1 were causing "mild effect" on spinal nerve roots and that electromyography (EMG) test results reflected peripheral neuropathies of the right posterior tibial and right sural nerves, but opined that any peripheral neuropathy experienced by the Veteran was not secondary to the lumbar myositis. The spinal examiner's explanation for this opinion was cursory and ambiguous-the examiner stated that the myositis and neuropathies were due to different disease entities, but did not identify or discuss any such entities. Further, the report of the Veteran's August 2008 private EMG study, which relates multiple neuropathies to his myositis, is also lacking in explanation, as it merely reflects diagnoses the nerve abnormalities and identifies L-4 to L-5 irritation as the clinical basis. The Board further notes that, since the Board's December 2002 denial, the rating schedule has been amended. Effective September 26, 2003, all spine disabilities are now rated under a General Rating Formula, which essentially authorizes assigning a separate rating for certain neurological manifestations of lumbar spine disability. See 38 C.F.R. § 3.71a (2012). Given the deficiencies in the record regarding the etiology of any current neurological disability(ies) or impairment, the Board also finds that neurological examination of the Veteran is needed to resolve these claims. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Hence, the RO should arrange for the Veteran to undergo VA spine and neurological examinations. each by an appropriate medical professional, at a VA medical facility. The Veteran is hereby advised that failure to report for any scheduled examination(s), without good cause, may well result in denial of the reopened and/or increased rating claim(s). See 38 C.F.R. § 3.655(b) (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. If the Veteran fails to report for any scheduled examination(s), the RO must obtain and associate with the claims file a copy of any notices of the dates and times of the examination(s) sent to the Veteran by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo further examination, to ensure that all due process requirements are met, and that the record before the examiners is complete, the RO should undertake appropriate action to obtain all pertinent, outstanding records. The claims file reflects that the Veteran obtains treatment for his myositis from private providers as well as from VA, on an ongoing basis. As regards VA records, the most recent VA treatment records associated with the claims file were generated on March 3, 2007, more than six years ago. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain from the San Juan VA Medical Center (VAMC) and any associated outpatient clinics all outstanding records of relevant VA evaluation and/or treatment of the Veteran for association with the claims file. The RO should follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. The evidence of record also indicates that there are outstanding private medical records which may be pertinent to the claim on appeal. In February 2009, the Veteran mailed VA an Authorization and Consent to Release Information to VA (VA Form 21-4142) for a Dr. Gilfredy Acevedo Hernandez. Although the RO mailed this physician a letter seeking records and subsequently received a February 2009 private medical certificate listing the Veteran's diagnoses, Dr. Hernandez did not provide any actual treatment notes and, as additional time has lapsed, the Veteran may have received subsequent care from Dr. Hernandez. Further, he submitted a February 2011 treatment note and spinal disability assessment from a Dr. Angel Huertas Ramos. To the extent possible, any outstanding private records, to specifically include records from these two physicians, should be obtained. Furthermore, the Veteran also has made statements indicating that potentially relevant employment records are outstanding. He has contested in multiple statements to VA that he had to relinquish his employment with the United States Postal Service because he became too disabled to work. He specifically attributed his inability to work to his service-connected back disability and indicated on Applications for Increased Disability Compensation Based on Unemployability (VA Form 21-8940) submitted in November 2003 and February 2009 that he expected to receive disability retirement benefits. VA has a duty to advise a claimant of the potential relevance of employment records. See Spurgeon v. Brown, 10 Vet. App. 194, 197-98 (1997). Therefore, the RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claims on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). In its letter, the RO should specifically request that the Veteran furnish, or furnish appropriate authorization for the RO to obtain, outstanding records from Dr. Acevedo Hernandez. The RO should also advise the Veteran that employment records are potentially relevant to his claims for increased rating and for a TDIU, and assist him in obtaining any such records, as needed. Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal in light of all pertinent evidence and legal authority. The RO's adjudication of the claim for an increased disability rating should include consideration of whether "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found), pursuant to Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007), is appropriate. As a final point, the Board notes that the claims file includes evidence written in Spanish with no accompanying certified English translation. While on remand, the RO should take the opportunity to review the Veteran's claims file, identify all pertinent items of evidence written in Spanish-to particularly include a February 2011 note from Dr. Angel Huertas Ramos, a February 2011Multiple Impairment Questionnaire, and an April 2000 note from Dr. Hernandez- and translate those items into English in order to facilitate review of the record by the Board. Accordingly, these matters are hereby REMANDED to the RO, via the AMC, for the following actions: 1. Have all pertinent Spanish-language evidence in the claims file -to particularly include a February 2011 note from Dr. Angel Huertas Ramos, a February 2011Multiple Impairment Questionnaire, an April 2000 note from Dr. Hernandez, and any additional Spanish-language evidence associated with the claims file as a result of this remand- translated to English. The translated documents should be associated with the claims file. 2. Obtain from the San Juan VAMC, and any associated outpatient clinics, any outstanding, pertinent records of evaluation and/or treatment of the Veteran generated after March 3, 2007. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding treatment records from Dr. Gilfredy Acevedo Hernandez, Dr. Angel Huertas Ramos, and any other physicians who have treated him for his back disability. Advise the Veteran of the potential relevance of employment records to his claims for an increased rating and a TDIU, and assist him as needed. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 4. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. After all records and/or responses received from each contacted entity have been associated with the claims file, the RO should arrange for the Veteran to undergo VA neurological examination, by an appropriate physician, at a VA medical facility. The entire claims file must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. For each lower extremity, the physician should clearly identify all current neurological disability(ies), to include neuropathy. Then, for each diagnosed disability, the physician should offer an opinion as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability was caused or is aggravated (worsened beyond natural progression) by service-connected lumbar myositis. The physician should also clearly indicate whether the Veteran has any chronic neurological impairment, to include sciatica, as a manifestation of the service-connected lumbar spine disability. For each identified manifestation, the examiner should indicate whether such manifestation constitutes a separately ratable disability, and, if so, should provide an assessment of the severity of the manifestation as mild, moderate, moderately severe, or severe. In rendering the requested opinions, the physician should In rendering the requested opinion, the examiner should consider and discuss all pertinent lay evidence (to include the Veteran's complaints of radiating back pain, bilateral hip pain, and bilateral leg numbness) and medical evidence (to include service treatment records reflecting an assessment of possible sciatica, as well as comments reflected in the reports of the September 2008 VA examinations and the August 2008 private EMG study. The physician should set forth all examination findings, along with the complete rationale for the conclusions reached, in a printed (typewritten) report. 6. Also after all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a VA spine examination, by an appropriate medical provider, at a VA medical facility. The entire claims file must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should conduct range of motion testing of the thoracolumbar spine (expressing the results in degrees). The examiner should render specific findings as to whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss of the thoracolumbar spine due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner should also indicate whether the Veteran has any ankylosis of the lumbar spine; and, if so, the extent of any such ankylosis, and whether the ankylosis is favorable or unfavorable. As medical evidence reflects that a component of the Veteran's service-connected disability is disc impairment, the examiner should render findings responsive to the criteria for intervertebral disc syndrome (IVDS)-specifically, comment as to the existence and frequency of any incapacitating episodes (i.e., a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician). If the Veteran has incapacitating episodes associated with his lumbar spine disability, the examiner should specify whether, over the past 12 months, such episodes have had a total duration of (a) at least one week, but less than 2 weeks; (b) at least two weeks but less than 4 weeks; (c) at least 4 weeks but less than 6 weeks; or (d) at least 6 weeks. The examiner should set forth all examination finding and test results, along with the complete rationale for the conclusions reached, in a printed (typewritten) report. 7. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 8. After completing the requested action, and any additional notification and/or development deemed warranted, adjudicate the matters on appeal. If the Veteran fails, without good cause, to report to any scheduled examination(s), in adjudicating the claim(s), apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. Otherwise adjudicate the matters in light of pertinent evidence (to particularly include all that added to the record since the RO's last adjudication of the claim) and legal authority (to include consideration of whether staged rating of the back disability, pursuant to Hart (cited above), is appropriate). 9. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs