Citation Nr: 1313221 Decision Date: 04/19/13 Archive Date: 05/02/13 DOCKET NO. 10-01 410 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to a rating in excess of 20 percent for service-connected degenerative joint disease (DJD) of the lumbar spine. 2. Entitlement to service connection for a cervical spine disability. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant and appellant's spouse ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran served on active duty from July 1980 to November 1983. This case comes to the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Jurisdiction over the Veteran's claims file has been transferred to the RO in Chicago, Illinois. In April 2011, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. In September 2012, the Board remanded these matters for additional development. The issue of entitlement to service connection for a cervical spine 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 The Veteran's lumbar spine disability is manifested by complaints of chronic lumbar back pain, limited range of motion due to pain with flexion to 50 degrees, without clinical evidence of abnormal bladder or bowel and without stiffness, weakness, lack of endurance, or fatigue of the low back. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for service-connected DJD of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to notify and assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated in April 2006, March 2009, and September 2012. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. 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, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent February 2013 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained examinations with respect to the claim decided herein. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Increased rating Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Diagnostic Code (DC), the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). The Veteran's entire history is to be considered when assigning disability rating. 38 C.F.R. § 4.1 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran's lumbar spine disability is currently rated as 20 percent disabling under 38 C.F.R. § 4.71a , Diagnostic Code (DC) 5243 (2012) for intervertebral disc syndrome (IVDS). Spine disabilities are evaluated under a General Rating Formula for Diseases and Injuries of the Spine, which contemplates 20 percent rating for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is in order for forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, while a 100 percent rating contemplates unfavorable ankylosis of the entire spine. Id. A note following the schedular criteria directs that associated objective neurologic abnormalities are to be evaluated separately. Also, the "combined range of motion" refers to the sum of forward flexion, extension, left and right lateral flexion, and left and right rotation. 38 C.F.R. § 4.71a (Plate V) indicates that normal range of motion of the thoracolumbar spine encompasses flexion to 90 degrees and extension, bilateral lateral flexion, and bilateral rotation to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. The Board notes that criteria of the General Rating Formula are applied with and 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. In determining the degree of limitation of motion, the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the Veteran's ordinary activity are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). In addition, the regulation provides that intervertebral disc syndrome may be rated under either the General Rating Formula or the "Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes", whichever results in a higher rating. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes states that a 20 percent rating is warranted for IVDS: With incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS: With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Id. A 60 percent rating is warranted for IVDS: With incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Id. For purposes of evaluations under Diagnostic Code 5243, an incapacitating episode as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. [Note 1]. Note (2): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. An October 2006 VA spine examination report reflects that the Veteran complained of low back pain and occasional sciatic pain. Flare-ups are brought on by increased activity (standing greater than 30 minutes or lifting). He can walk approximately 50 yards. He uses a cane in his right hand intermittently. It was noted that limitation in walking and the use of a cane were primarily because of knee problems and not back problems. When he experiences a flare-up he takes Tylenol No. 3, uses hot packs or takes a warm shower and rests. The flare-ups may last 24 hours. The frequency of flare-ups was entirely activity related, but occurred at least twice per month. He was presently employed as an auto parts technician. At work, he has to limit his activity and be careful about lifting. He is able to drive approximately one half hour before he experiences back pain. He complains of low back stiffness after sitting for more than one half hour, necessitating him to change positions. His activities of daily living are not affected. However, household chores requiring lifting are limited due to back pain. The examiner stated that it was more likely than not that during a flare-up, the Veteran experienced increased functional impairment due to pain necessitating him to decrease activity; however, the additional limitation of motion could not be stated without resorting to speculation. The Veteran had no constitutional symptoms, no bladder or bowel dysfunction, and he denied dysthesias in either lower extremity. The Veteran described that pain in his spine as a deep ache diffusely in the low back, also as sharp, and rated the pain as a 9 on a scale of 1 to 10. Physical examination revealed that the Veteran had a short leg limp, left side. He had diffuse tenderness over the lumbosacral spine and paraspinal musculature. There was no muscle spasm. There was no SI joint tenderness. Range of motion testing revealed extension 0 to 20 degrees (painful from 0 to 20 degrees), forward flexion 0 to 90 degrees (painful from 30 to 90 degrees), right and left lateral flexion 0 to 30 degrees, with left side bending painful in the arc. The VA examiner noted that additional limitation of range of motion due to repetitive motion could not be determined because the Veteran was unable to perform repetitive forward flexion due to pain. There was no muscle spasms and there was no muscle spasm, guarding severe enough to result in an abnormal gait, abnormal spinal contour, reversed lordosis or abnormal kyphosis. There was no ankylosis. X-rays performed in July 2006 revealed mild degenerative arthritis at multiple levels. The diagnosis was leg length discrepancy (left shorter than right), mechanical back pain, degenerative disc disease L4-L5; L5-S1, and sciatica, right. The conditions affecting the Veteran's lumbosacral spine are chronic, his symptoms have become increasingly symptomatic over the last several years and his condition is likely to be progressive. The increased pain experienced during a flare-up causes the Veteran to experience additional functional loss in that he has to limit/modify physical activity, take pain medications, and rest. A November 2012 VA spine examination report reflects that the Veteran is diagnosed with degenerative joint disease (DJD) of the lumbar spine and sciatica and that his treatment consists of pain medication and periodic epidural injections. The report reflects that the Veteran did not report having flare-ups that impact the function of his thoracolumbar spine. Range of motion testing revealed forward flexion to 50 degrees, with objective evidence of painful motion beginning at 30 degrees, extension to 10 degrees with objective evidence of painful motion beginning at 10 degrees. He had right and left lateral flexion to 15 degrees, with objective evidence of painful motion beginning at 15 degrees. He had right and left lateral rotation to 20 degrees, with painful motion beginning at 20 degrees. The Veteran was able to perform repetitive use testing with 3 repetitions. Post-test forward flexion ended at 50 degrees, extension to 10 degrees, right and left lateral flexion to 15 degrees and right and left lateral rotation to 20 degrees. The Veteran did not have additional limitation of range of motion of his thoracolumbar spine following repetitive-use testing. The VA examiner noted that the Veteran had functional loss/impairment of the thoracolumbar spine consisting of less movement than normal, pain on movement, and interference with sitting, standing, and/or weight-bearing. He did not find that the Veteran had weakened movement, excess fatigability, incoordination, swelling, instability or disturbance of locomotion. The Veteran did not have localized tenderness or pain to palpation for the joints and/or soft tissue and he did not have guarding or muscle spasm of the thoracolumbar spine. Muscle strength testing was performed and was of normal strength. The Veteran did not have muscle atrophy. The VA examiner noted that the Veteran has IVDS of the thoracolumbar spine but has not had any incapacitating episodes over the past 12 months due to IVDS. The Veteran uses a cane due to low back pain on a regular basis to assist with locomotion. Imaging studies were performed and arthritis was documented. An MRI revealed DJD of the lumbosacral spine. The examiner opined that the Veteran's thoracolumbar spine condition impacts his ability to work in that his back pain interferes with walking and standing. Initially, the Board notes that the Veteran is separately service-connected for radiculopathy of the bilateral lower extremities and higher ratings for these separate disabilities are not on appeal. Hence, findings, symptoms, and diagnoses noted in the evidence pertaining to these disabilities will not be considered in adjudicating the issue on appeal. Esteban v. Brown, 6 Vet. App. 259 (1994) According to the General Rating Formula for Diseases and Injuries of the Spine, at 38 C.F.R. § 4.71a , to warrant a rating in excess of 20 percent, forward flexion of the thoracolumbar spine must be limited to 30 degrees or less, or there must be favorable ankylosis of the entire thoracolumbar spine. Neither of these has ever been demonstrated. Based on the objective findings in the medical evidence of record, the Veteran's flexion of his lumbar spine was limited to 50 degrees at the time of the November 2012 VA examination. At the time of the 2006 VA examination, the Veteran's flexion of the lumbar spine was to 90 degrees, which is normal. Based on this symptomatology, a 20 percent rating is warranted for the Veteran's service-connected lumbar spine disorder. The evidence shows that the Veteran has limitation of range of motion due to pain but not due to weakness, incoordination, or fatigue. 38 C.F.R. §§ 4.40, 4.45 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995); Cullen v. Shinseki, 24 Vet. App. 74 (2010). Even with the limitations reported, the Veteran's range of motion does not satisfy the criteria for a higher disability rating. The Board also notes that the evidence does not show further limitation of range of motion based on repetitive motion. The Veteran has not complained that repetitive motion causes limitations of range of motion. Instead, the Veteran has consistently maintained that prolonged sitting or standing causes an increase in pain and stiffness. Nothing was stated that indicates it prevented him from achieving the ranges of motion already noted by examiners. With regard to flare-ups, the Board notes that the Veteran has not indicated he has had incapacitating episodes because of the flare-ups, and he has not indicated he loses range of back motion during a flare-up. In this case, the Veteran's pain on use is considered in the 20 percent rating currently assigned for his service-connected lumbar spine disability. With regard to the Formula for Rating IVDS Based on Incapacitating Episodes, the evidence does not show that the Veteran has incapacitating episodes of having a total duration of at least four weeks but less than six weeks during a 12-month period. He is not shown to have had incapacitating episodes of having a total duration of at least four weeks during a 12-month period. In fact, the most recent VA examination in November 2012 shows that the Veteran had no incapacitating episodes. Accordingly, the criteria for an evaluation in excess of 20 percent have not been met under the Formula for Rating IVDS Based on Incapacitating Episodes. In conclusion, the Veteran's service-connected lumbar spine disability is not manifested by unfavorable ankylosis of the entire thoracolumbar spine; or, by physician-ordered bed rest of any significant duration. Additionally, the medical evidence of record did not show that the degenerative changes of the lumbosacral spine were manifested by significant limitation of motion. Further, there was no evidence of excessive fatigability, incoordination, or significant further loss of range of motion post-exercise. When the ranges of motion in the back are considered together with the evidence showing functional loss -- to include the findings pertaining to normal muscle strength, and the lack of evidence of muscle atrophy -- the Board finds that there is insufficient evidence of objective pain on motion to such extent, or any other functional loss, to warrant an evaluation in excess of 20 percent. As such, the 20 percent rating currently assigned is appropriate based on the medical evidence. Consideration has been given to whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2012); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record). In determining whether an extra-schedular evaluation is for consideration, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must next consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-16. When those two elements are met, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1)(2012); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is not inadequate. A rating in excess of 20 percent is provided for certain manifestations of the service-connected lumbar spine disability, but the evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disability, as the criteria assess the level of occupational and social impairment attributable to the Veteran's symptoms. As the Board finds that the Veteran's disability picture is contemplated by the rating schedule, the inquiry ends and the Board need not consider whether the disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Accordingly, referral for consideration of an extra-schedular rating is not warranted. ORDER Entitlement to a rating in excess of 20 percent for service-connected degenerative joint disease (DJD) of the lumbar spine is denied. REMAND Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. As noted in the September 2012 remand, the Veteran contends that he has a cervical spine disability that is a result of a January 1983 in-service motor vehicle accident, or in the alternative, is secondary to a service-connected disability. Service treatment records show that the Veteran was involved in an in-service motor vehicle accident; however, there are no complaints, symptoms, findings, or diagnosis related to the neck or cervical spine. His separation examination report and self report of medical history are also negative for any complaints, symptoms, findings, or diagnosis related to the neck or cervical spine. An April 2003 private medical record notes that the Veteran complained of neck pain and that lifting results in shooting pain from the low back to the neck. A March 2005 VA physical therapy record reflects that the Veteran complained of chronic neck pain for more than 23 years. In a May 2006 statement, the Veteran indicated that he had neck pain, and that he believed it was related to his leg being shorter. A July 2006 VA spine examination report reflects that the Veteran complained of neck pain of approximately 9 years duration with no precipitating event at that time. The examiner diagnosed cervical spondylosis and opined that a leg length discrepancy or a lumbar spine condition will not cause cervical spondylosis. An August 2006 "report of contact" (VA form 119) indicated that the prior examiner reported that the Veteran's cervical spine disability was less likely as not related to the Veteran's lumbar spine condition. April 2007 and September 2007 VA medical records reflect that the Veteran complained of neck pain which was radiating down to the left arm. In November 2012, the Veteran underwent medical examination of his cervical spine during a VA examination and was diagnosed with degenerative joint disease of the cervical spine. The VA examiner opined that the Veteran's cervical spine disability was less likely than not (less than 50 percent or greater probability) incurred in or caused by the claimed in-service injury. The rationale was that there was no evidence of an in-service neck injury or treatment in service related to neck complaints. In addition, his neck complaints commenced years after discharge. The VA examiner further opined that the claimed condition was less likely than not (less than 50 percent probability) due to or the result of the Veteran's service-connected condition. He explained that there is no credible medical clinical studies that cervical DJD could be caused by lumbar DJD nor related to an abnormal gait secondary to residuals of a leg fracture. Initially, the Board finds that the November 2012 VA examiner did not address or consider the Veteran's lay statements regarding the incurrence of his cervical spine symptoms, and his continuity of symptomatology since his military discharge. Thus, the Board finds that the opinions of record remain inadequate for the purpose of determining whether any diagnosed cervical spine disability is related to service. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination inadequate where the examiner did not comment on Veteran's report of in-service injury and relied on lack of evidence in service medical records to provide negative opinion). In addition, although the examiner clearly opined that the Veteran's cervical spine disability was not due to or the result of the Veteran's service-connected disabilities, he failed to provide an opinion as to whether the Veteran's the Veteran's cervical spine disability was aggravated by the Veteran's service-connected disabilities. Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service- connected disability, but for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. See 38 C.F.R. § 3.310(b) (2012); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. See Colvin v. Derwinski, 1 Vet. App. 171 (1991) and Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Hence, a remand is warranted to return the claims file to the November 2012 VA examiner, if available, for a supplemental opinion. Accordingly, this matter is REMANDED for the following action: 1. Forward the entire claims file, to include a copy of this REMAND, to the examiner who prepared the November 2012 VA examination report for a supplemental opinion. The examiner must review the claims file and that review must be noted in the report. The examination report should include discussion of the Veteran's documented medical history and assertions. The VA examiner must consider the Veteran's statements regarding his injury in service and continuity of symptomatology in providing an opinion as to whether it is at least as likely as not (50 percent probability or higher) that any current cervical spine disability is related to the Veteran's service or whether any arthritis of the cervical spine developed within one year of the Veteran's discharge from service. The examiner should also opine whether it is at least as likely as not (i.e. there is a 50 percent or greater probability) that any diagnosed cervical spine disability (a) is caused, or (b) is aggravated by the Veteran's service-connected disabilities. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation, consistent with 38 C.F.R. § 3.310 (as revised effective in October 2006). In providing this opinion, the examiner should discuss the April 2003 private medical record noting that when the Veteran lifts things he has pain radiating from his low back to his neck. If the prior examiner is unavailable, or is unable to render the requested supplemental opinion without examining the Veteran, schedule the Veteran for a VA spine examination, by a medical doctor with the appropriate expertise, to obtain answers to the question posed above. The examiner should set forth all examination findings, with the rationale for the conclusions reached. 2. After ensuring that the examination report is adequate, readjudicate the claim remaining on appeal. If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded an opportunity to respond before the claims file is returned to the Board for further appellate review. 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). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs