Citation Nr: 1317992 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 96-48 954 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California THE ISSUES 1. Entitlement to a rating greater than 10 percent for a lumbar puncture with nerve root damage at L5 and S1. 2. Entitlement to service connection for a low back disorder, to include as secondary to the Veteran's lumbar puncture with nerve root damage at L5 and S1. 3. Entitlement to service connection for a right knee disorder, to include as secondary to the Veteran's lumbar puncture with nerve root damage at L5 and S1. 4. Entitlement to service connection for a left knee disorder, to include as secondary to the Veteran's lumbar puncture with nerve root damage at L5 and S1. 5. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, to include on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b). REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. N. Moats, Counsel INTRODUCTION The Veteran had active military service from August 1968 to July 1971. This appeal to the Board of Veterans' Appeals (Board) arose from May 1995 and July 2001 RO rating decisions. In a May 1995 rating decision, the RO in San Diego, California, inter alia, continued a 10 percent disability rating for residuals of a lumbar puncture with nerve root damage (compensated under 38 U.S.C. § 1151). The Veteran filed a notice of disagreement (NOD) in May 1996. The RO issued a statement of the case (SOC) in July 1996, and the Veteran filed a substantive appeal in September 1996 (via a VA Form 9, Appeal to Board of Veterans' Appeals). Jurisdiction of the claims file was later transferred to the RO in Los Angeles, California. In September 1998, the Veteran testified during a hearing before RO personnel; a transcript of that hearing is of record. In December 1999, the Board remanded to the RO the claim for an increased rating for further action. After accomplishing some action, the RO continued to deny the claim (as reflected in a February 2001 supplemental SOC (SSOC)). In a July 2001 rating decision, the RO declined to reopen claims for service connection for a right knee disorder and for a low back disorder, as well as denied service connection for a left knee disorder, each claimed as secondary to the Veteran's lumbar puncture with nerve root damage at L5 and S1. The Veteran filed a NOD in June 2002, the RO issued a SOC in December 2002, and the Veteran filed a substantive appeal in January 2003. In April 2003, the Board reopened the claims for service connection for low back and right knee disorders, but remanded the reopened claims for service connection, on the merits, along with the other claims on appeal, to the RO for further action. After accomplishing the requested action, the RO denied the reopened claims, along with the other claims on appeal (as reflected in the March 2004, April 2004 and March 2005 SSOCs) and returned these matters to the Board for further appellate consideration. In August 2005, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of the hearing is of record. In December 2005, the Board remanded the matters on appeal to the RO, via the Appeals Management Center (AMC), in Washington, DC, for further action, to include additional development of the evidence. After accomplishing further action, the AMC continued to deny the claims on appeal (as reflected in a September 2006 SSOC) and returned these matters to the Board for further appellate consideration. In March 2007, the Board remanded the claim for an increased rating for a lumbar puncture with nerve root damage and for service connection for a low back disorder to the RO, via the AMC, for additional development. Also in March 2007, the Board denied service connection for right and left knee disorders, to include as secondary to residuals of the lumbar puncture. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an July 2008 Order, the Court granted a joint motion filed by representatives of both parties, vacating the Board's March 2007 decision, in part, and remanding the matters to the Board for compliance with the instructions in the joint motion. In November 2008, the Board, in turn, remanded the claims for service connection for right and left knee disorder to the RO, via the AMC, for additional development consistent with the joint motion. After accomplishing some of the action requested in the Board's March 2007 and November 2008 remands, the AMC continued to deny each claim (as reflected in a May 2010 SSOC), and returned the matters to the Board for further appellate consideration. In August 2010, the Board, again, remanded the claims on appeal to the RO, via the AMC, for additional development. After accomplishing some of the action requested in the Board's August 2010 remand, the AMC continued to deny each claim (as reflected in a December 2011 SSOC), and returned the matters to the Board for further appellate consideration. In April 2012, the Board, again, remanded the claims on appeal to the RO, via the AMC, for additional development. After accomplishing some of the action requested in the Board's April 2012 remand, including preparing a November 2012 Formal Finding of Unavailability of a copy of the Social Security Administration's decision awarding the Veteran disability benefits, the AMC continued to deny each claim (as reflected in a December 2012 SSOC), and returned the matters to the Board for further appellate consideration. As explained in further detail in the remand below, in a May 2013 statement, the Veteran asserted, through his representative, that he was unable to work due to his service-connected lumbar puncture with nerve damage. Accordingly, and consistent with Rice v. Shinseki, 22 Vet. App. 447 (2009), the appeal has been expanded to include the matter of the Veteran's entitlement to a TDIU. The Board notes that, during the pendency of this appeal, the appellant has been represented by the Military Order of the Purple Heart of the U.S.A., as reflected in the August 2005 Appointment of Veterans Service Organization as Claimant's Representative (VA Form 21-22). With regard to the appeal of the Board's March 2007 decision to the Court, the appellant was represented by a private attorney, Glenn Bergmann, Esq., as reflected in the July 2007 Legal Representation Agreement. In September 2008, the Board was informed that Mr. Bergmann was not representing the appellant before VA, and that the Military Order of the Purple Heart of the U.S.A. had resumed representation over these matters. However, most recently, the Veteran appointed another private attorney, Virginia A. Girard-Brady, to represent him, as reflected in a December 2012 Appointment of Individual as Claimant's Representative (VA Form 21-22a). As a final preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claim. The Veteran's Virtual VA electronic claims folder was reviewed in connection with this claim. The Board's decision addressing the claim for service connection for a low back disorder is set forth below. The claims for entitlement to a rating greater than 10 percent for a lumbar puncture with nerve root damage at L5 and S1, entitlement to service connection for right and left knee disorders, and entitlement to a TDIU are addressed in the remand following the order; those matters are being remanded to the RO, via the AMC. VA will notify the appellant when further action, on his part, is required. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. The Veteran has competently and credibly asserted injuring his back during combat maneuvers in service. 3. The Veteran currently has degenerative joint and disc disease of the lumbar spine, and the collective lay and medical evidence suggests that there exists a medical relationship between current low back disability and activities associated with the Veteran's combat service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for degenerative joint and disc disease of the lumbar spine are met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist 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 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Given the favorable disposition of the claim for service connection for low back disorder, the Board finds that all notification and development actions needed to fairly adjudicate the claim have been accomplished. II. Analysis Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Generally, this requires (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden, 381 F.3d at 1167; 38 C.F.R. § 3.303(d). Service connection may also be established either by showing that a chronic disability or disease was incurred during service and later manifestations of such chronic disability or disease are not due to intercurrent cause(s) or that a disorder or disease was incurred during service and there is evidence of continuity of symptomatology which supports a finding of chronicity since service. 38 C.F.R. § 3.303(b). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). As an identified chronic disease, arthritis may be subject to service connection based upon a showing of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). In adjudicating a claim for benefits, VA is responsible for determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Considering the pertinent evidence in light of the governing legal authority, and resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for a low back disorder, diagnosed as degenerative joint and disc disease, is warranted. The Veteran has primarily alleged that he has a low back disorder secondary to his service-connected lumbar puncture with nerve root damage. Alternatively, he has asserted that his low back disability was caused by activities in military service, including digging dirt to fill sand bags, jumping into bunkers, jumping out of helicopters and moving to various hiding places under small arms fire. Service treatment records are silent with respect to any complaints or diagnoses pertaining to the low back. The Veteran's discharge examination dated February 1971 showed that the Veteran's spine was evaluated as clinically normal. In a July 1971 statement, the Veteran indicated that there had been no change in his medical condition. Although there is no documented in-service injury, the Veteran served in combat; he was awarded the Combat Infantry Badge, which is indicative of combat exposure during his service. Further, the Board finds no reason to question the veracity of the Veteran's assertions of in-service back injury. Thus, the Veteran's assertions regarding injuring his back during combat maneuvers are accepted as credible and consistent with the circumstances of the Veteran's service. See 38 C.F.R. § 3.304(d) (satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation). See also Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996) (under 38 U.S.C.A. § 1154(b), a combat veteran's assertions of an event during combat are to be presumed if consistent with the time, place and circumstances of such service). However, although injury associated with the Veteran's combat service is essentially conceded, there must still be medical evidence etiologically linking the Veteran's back injury in service to a current back disability. See Dalton v. Nicholson, 21 Vet. App. 23, 36-37 (2007); Cohen v. Brown, 10 Vet. App. 128, 138 (1997). In short, 38 U.S.C.A. § 1154(b) can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to a current disorder. See Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996). VA medical records showed that in October and November 1980, the Veteran was admitted for treatment. During the course of hospitalization, the Veteran underwent a spinal tap, which resulted in trauma to the nerve root. In 1983, the Veteran underwent a laminectomy to help resolve residual back and right leg pain. Follow up VA treatment records continued to show reports of back pain. An October 1993 x-ray showed that the Veteran had degenerative joint disease (DJD) of the lumbar spine. The Veteran continued to report low back pain. The Veteran was initially afforded a VA examination in May 2003. The examiner indicated that lumbar and right leg pain were as likely as not associated with the lumbar puncture and a measure of his pain may also be related to degenerative disc disease (DDD) of the lumbosacral spine. It was indicated that it was hard to entirely distinguish as to whether the lumbar pain is related to the lumbar puncture or the DDD since both processes may cause chronic lumbar syndrome. In a July 2003 handwritten addendum to the May 2003 VA examination report, the examiner concluded that the lumbar puncture did not cause DJD. On VA neurological examination in January 2004, the examiner noted that the Veteran had chronic lumbar pain and associated right radicular No. 5 nerve root pain. It was also indicated that lumbar pain from DDD of the lumbar spine, which is usually related to wear and tear on the lumbar spine from aging and activities of living, began in the mid-1990s and persisted since that time. The examiner did not express an opinion as to whether or not the lumbar spine DDD was caused or is aggravated by the lumbar puncture and residuals thereof, or whether the symptoms associated with the lumbar puncture with nerve root damage, can be distinguished from symptoms associated with DDD of the lumbar spine. In March 2007, the Board remanded the claim for service connection for a low back disorder to obtain a VA medical examination and opinion. In February 2010, the Veteran underwent a VA examination for his lumbar spine. He was diagnosed with chronic bilateral pars defects at the L5 vertebra and severe multilevel DDD. The VA examiner opined that the Veteran's DDD was completely separate from his lumbar puncture nerve root damage and not related to or caused by the lumbar puncture nerve root damage. The examiner, however, did not provide an opinion as to whether the DDD was medically related to the Veteran's active military service on a direct basis. Pursuant to the August 2010 remand, the Veteran underwent another VA examination for his lumbar spine in October 2010. He was diagnosed with bilateral L5 spondylolysis, grade 1 L5 anterior spondylolisthesis and severe bilateral neural foramina stenosis. The examiner concluded that the Veteran had a current low back disability, separate and distinct from the lumbar puncture with nerve root damage at L5 and S1. The examiner opined that it was her medical opinion that the low back disability was less likely as not (less than 50/50 probability) caused by or a result of lumbar puncture in 1980. Her rationale was that the Veteran stated that the lumbar puncture in 1980 caused him to have nerve damage to L5 and S1 and there was no medical evidence or basis that indicates L5 or S1 nerve root damage. Again, the examiner did not provide an opinion as to whether the separate and distinct low back disability (bilateral L5 spondylolysis, grade 1 L5 anterior spondylolisthesis and severe bilateral neural foramina stenosis) was medically related to the Veteran's active military service on a direct basis. The Veteran underwent another VA examination for his lumbar spine in July 2011. He was then diagnosed with severe degenerative changes in the lumbar and cervical spine with neuroforaminal stenosis. The examiner opined that the Veteran's current low back disability was as least as likely as not (50/50 probability) caused by or a result of multiple instance of back strain, chronic low back pain documented in his claims file. The examiner's rationale was that the findings, both clinically and radiographically were consistent with a degenerative process. The Veteran also had multiple recorded visits in his medical record related to "chronic low back pain," and recent notes related to his cervical disabilities. The examiner concluded that any physical labor or strenuous activity was at least as likely as not to contribute to degenerative changes over time. The examiner indicated that multiple volumes of the claims file were reviewed. In a November 2011 addendum, the examiner who performed the July 2011 VA examination stated there was a change of his medical opinion. The examiner noted that previously he stated that the Veteran's lumbar disability was at least as likely as not a result of his iatrogenic injury that occurred in 1980. However, the dates were misinterpreted as the examiner was under the false assumption that the Veteran's military service was from 1968 to 1981 when in fact the Veteran's military service was from 1968 to 1971. In light of this mistake, the examiner noted that the Veteran's disability associated with the iatrogenic lumbar puncture occurred after his military service had concluded and should not be associated or attributed with his service. Accordingly, the examiner opined that the Veteran's back condition was less likely as not associated with his military career. In this regard, the examiner explained that the Veteran's back pain began after an iatrogenic injury during a lumbar tap and he experienced chronic worsening disability since that time, which was outside of his service and should appropriately be labeled as not associated with his military career. Additionally the examiner explained that the Veteran had findings of severe lumbar spondylosis that were of a degenerative nature and not attributable to his iatrogenic injury, but rather were degenerative or sustained over many years of "wear and tear." The examiner explained that the Veteran's "military service may have contributed to his degenerative spondylosis, but should not be solely attributed to it." In addition, the Veteran's radiculopathy was likely worsened from his degenerative changes. For these reasons, the examiner amended his previous opinion and now found that the Veteran's lumbar spondylosis was less likely as not associated with his military service and his iatrogenic injury was not caused by or associated with his military service. In the April 2012 remand, the Board determined that the examiner's opinion as to whether the Veteran's current low back disability (separate and distinct from the lumbar puncture with nerve root damage) was medically related to the Veteran's active military service on a direct basis was still unclear and remanded this case again for further opinion. On remand, in a May 2012 addendum, the examiner again indicated that the Veteran's military duties of digging dirt, jumping in bunkers and moving to hiding places can and likely did contribute to the degenerative findings of his spine. However, these episodes were not directly the cause. The examiner again indicated that he found no entries related to back complaints in the service treatment records. He then opined that his back findings were less likely than not related to his military service. He rationalized that his military service and duties in and of themselves should not be causative of degenerative arthritis, unless there is an injury or documentation to refute this opinion. Otherwise, the examiner continued that all military personnel would have low back arthritis attributed to service, which is not the case. In the absence of injury or treatment for back or pathology in service, the examiner determined that his service was not causative. In sum, the evidence of record shows that the Veteran has competently and credibly reported injuring his back during combat maneuvers. Further, the medical evidence of record clearly shows a current disability of the lumbar spine. Although the most recent VA examiner has indicated that the Veteran's duties were not the direct cause his back disability, he also clearly found that the Veteran's duties likely did contribute to the degenerative findings of the lumbar spine. In other words, even in arguably negative opinion, there are comments suggesting a positive link between the Veteran's current disability and the duties he performed in service. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 3.102. See also 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 53-56. Therefore, given the totality of the evidence-particularly, the lay evidence concerning the Veteran's activities/duties in service, as well as the VA opinion indicating that these duties, while not the sole cause, contributed to the Veteran's current back disability-and resolving all reasonable doubt on the question of medical nexus in the Veteran's favor, the Board finds that the criteria for service connection for degenerative joint and disc disease of the lumbar spine are met. ORDER Service connection for degenerative joint and disc disease of the lumbar spine is granted. REMAND Unfortunately, with respect to the remaining issues on appeal, the Board finds that further RO action is warranted, even though such will, regrettably, further delay an appellate decision on these matters. A remand by the Board confers upon a veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). With respect to the issue of entitlement to a higher rating for lumbar puncture with nerve damage, the most recent VA examination pertaining to the back dated in July 2011 does not clearly address the severity of this disability. Further, while this examination does provide neurological evaluation, it is unclear which symptoms are attributed to the service-connected lumbar puncture with nerve damage and which symptoms are due to radiculopathy of the lower extremities associated with the low back. In light of the grant of service connection herein for the Veteran's lumbar spine disability and to ensure that the record reflects the current severity of the lumbar puncture with nerve damage, the Board finds that a more contemporaneous examination, with findings responsive to the applicable rating criteria, is needed to properly evaluate the service-connected disability under consideration. Accordingly, the RO should arrange for the Veteran to undergo VA neurological examination, by an appropriate physician, at a VA medical facility. Further, with respect to the claims for right and left knee disorders, the Veteran has asserted that these disabilities are secondary to his service-connected lumbar puncture wound. He has also claimed that these disabilities are secondary to his now service-connected low back disability. Although the Veteran was afforded a VA examination in April 2010 with respect to the Veteran knee disorders, which determined that the Veteran's knee disorders were not caused by his service-connected lumbar puncture with nerve damage, the examination report does not provide an opinion as to whether the Veteran's knee disorders were aggravated by this service-connected lumbar puncture. See Allen (cited above). Moreover, the Veteran has never been afforded a VA examination to determine whether his knee disabilities were proximately due to or aggravated by his now service-connected lumbar spine disability. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (finding that the relevant inquiry when assessing the probative value of a medical opinion is whether the opinion reflects application of medical principles to an accurate and complete medical history). Under these circumstances, the Board also finds that another examination and an opinion by an appropriate physician are needed to resolve the claims for service connection for right and left knee disorders. 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). The Veteran is hereby notified that failure to report to any scheduled examination, without good cause, may well result in denial of the claims. 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. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the examination sent to him by the pertinent VA medical facility. Regarding the claim for a TDIU, the Board observes that total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012). However, a total rating, on an extra-schedular basis, may nonetheless be granted, in exceptional cases (and pursuant to specifically prescribed procedures), when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. See 38 C.F.R. § 4.16(b). The Veteran has asserted that he is unable to work due to his service-connected right leg and back disorders. The Board has found that this assertion appears to raise the matter of his entitlement to a TDIU in the context of his claim for a higher rating, the claim for a TDIU is essentially a component of the claim for a higher rating. See Rice, 22 Vet. App. at 447. Under these circumstances, after giving the Veteran an opportunity to file a formal claim for a TDIU, and completing the action pertinent to such claim, the RO should adjudicate the matter of the Veteran's entitlement to a TDIU, in the first instance, to avoid prejudice to the Veteran. See e.g. Bernard v. Brown, Vet. App. 384 (1993). 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 examiner is complete, the RO should give the Veteran another opportunity to present information and/or evidence pertinent to the claims remaining 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). 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 claims file as well as the Virtual VA electronic record currently includes outpatient treatment records from the VA Medical Center (VAMC) in Loma Linda, California dated through June 2012; however, more recent records from this facility may exist. The Board emphasizes that 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 must obtain from the Loma Linda VAMC all outstanding pertinent treatment records since June 2012, following the current procedures prescribed in 38 C.F.R. § 3.159 with respect to requesting records from Federal facilities. 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 claim remaining on appeal. In adjudicating the claim for increased rating, the RO should consider and discuss whether "staged rating" (assignment of different rating for different periods of time, based on the facts found), pursuant to Hart v. Mansfield, 21 Vet. App. 505 (2007), is warranted. Accordingly, these matters are hereby REMANDED for the following action: 1. Furnish to the Veteran a VA Form 21-8940 to enable him to file a formal application for a TDIU. 2. Obtain from the Loma Linda VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran, from June 2012 to the present. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. 3. Send to the Veteran and his attorney a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to any claim(s) on appeal that is not currently of record. In the letter, explain what is needed to support a claim for a TDIU, to include on an extra-schedular basis. 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 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, or, a reasonable time period for the Veteran's response has expired, arrange for the Veteran to undergo a VA neurological examination, by an appropriate physician, for evaluation of his lumbar puncture with nerve root damage at L5 and S1. The entire claims file, to include complete copy of the REMAND 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 necessary tests and studies should be accomplished (with all findings made available to the physician prior to the completion of his or her report), and all clinical findings should be reported in detail. To the extent possible, the physician should clearly delineate all symptoms associated with the Veteran's lumbar puncture with nerve root damage as opposed to his radiculopathy of the lower extremities. Moreover, the physician should provide sufficient findings needed to assess the severity of the Veteran's lumbar puncture with nerve root damage, to include whether the disability is considered comparable to moderate incomplete paralysis of the anterior tibial nerve, severe incomplete paralysis of the anterior tibial nerve or complete paralysis with lost of dorsal flexion of foot. The physician should also indicate whether, at any point pertinent to this appeal (to include up to one year prior to the filing of the September 1994 claim for an increased rating), the Veteran's lumbar puncture with nerve damage increased in severity, and, if so, the approximate date(s) of any such change(s), and the severity of the disability on each date. The examiner should set forth all examination findings, along with a complete, clearly stated rationale for the conclusions reached, in a printed (typewritten) report. 6. After all records and/or responses received from each contacted entity have been associated with the claims file or, a reasonable time period for the Veteran's response has expired, arrange for the Veteran to undergo VA examination, by an appropriate physician at a VA medical facility, to address the etiology of any current right and left knee disorders. The entire claims file, to include a complete copy of the REMAND (along with copies of relevant documents from Virtual VA, if the examiner does not have access), must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the examining physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician should clearly identify all current disability(ies) affecting the right and left knees. Then, with respect to each such diagnosed disability of each knee, the physician should offer an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability), that the disability: (a)) had its onset in or is otherwise medically related to service; or (b) was caused or is aggravated by service-connected lumbar puncture wound and/or degenerative joint and disc disease of the lumbar spine. In rendering each requested opinion, the physician should specifically consider and discuss the in- and post-service treatment records, as well as the Veteran's contentions. Specifically, the physician should address the Veteran's described duties during combat operations in Vietnam as well as his contention that he fell injuring his right knee due to instability caused by the nerve damage to the right leg. The examiner should set forth all examination findings, together with the complete rationale for the conclusions reached, in a printed (typewritten) report. 7. If the Veteran fails to report to any scheduled examination(s), obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination(s) sent to him by the pertinent VA medical facility. 8. 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. Stegall v. West, 11 Vet. App. 268 (1998). 9. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims on appeal along with the matter of the Veteran's entitlement to a TDIU, in light of all pertinent evidence (to particularly include all evidence added to the record since the last adjudication of the claim) and legal authority (to include consideration of whether staged rating, pursuant to Hart (cited above), is warranted, as well whether the procedures for consideration of an extra-schedular TDIU, pursuant to 38 C.F.R. § 4.16(b), are invoked). 10. If any benefit sought on appeal remains denied, furnish to the Veteran and his attorney an appropriate supplemental SOC 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 a 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