Citation Nr: 1318571 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 08-11 621 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for a pelvis disability to include secondary to a service-connected disability. 2. Entitlement to an evaluation in excess of 10 percent prior to January 8, 2007, for residuals of mechanical low back pain. 3. Entitlement to an evaluation in excess of 10 percent from March 1, 2007 to January 7, 2010, for residuals of mechanical low back pain. 4. Entitlement to an evaluation in excess of 20 percent since January 8, 2010, for residuals of mechanical low back pain. 5. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from October 1968 to October 1972. This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from August 2006 and December 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Offices (RO) in St. Louis, Missouri and Boston, Massachusetts. In March 2013, the Veteran testified at a Travel Board hearing. A transcript of that hearing is of record. On appeal the record raises the issues of entitlement to bilateral lower extremity radiculopathy secondary to mechanical low back pain. This issue, however, is not currently developed or certified for appellate review. Accordingly, this matter is referred to the RO for appropriate consideration. The issues of entitlement to service connection for a pelvis disability, to include as secondary to service-connected disability; entitlement to an evaluation in excess of 20 percent since January 8, 2010, for residuals of mechanical low back pain, and entitlement to a total disability evaluation based on individual unemployability due to service connected disorders are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT 1. Prior to January 8, 2007, the Veteran's mechanical low back pain was not manifested by forward thoracolumbar flexion to 60 degrees or less; a combined range of thoracolumbar motion less than 120 degrees; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour; ankylosis; or incapacitating episodes having a total duration of at least 2 weeks during a 12-month period. 2. Resolving reasonable doubt in the appellant's favor, effective March 1, 2007 and through January 7, 2010, his mechanical low back pain is found to have been manifested by forward thoracolumbar flexion less than 60 degrees; it was not manifested by thoracolumbar motion less than 30 degrees, or ankylosis. CONCLUSIONS OF LAW 1. Prior to January 8, 2007, the criteria for an evaluation in excess of 10 percent for residuals of mechanical low back pain were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5237 (2012). 2. Effective March 1, 2007 to Janaury 7, 2010, the criteria for a 20 percent evaluation for residuals of mechanical low back pain were met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) redefined VA's duty to notify and assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). January 2006 and April 2007 letters, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for an increased rating, to include what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA, as well as how ratings and effective dates are assigned. VA made reasonable efforts to obtain relevant records adequately identified by the Veteran, including service treatment records, VA examination reports, VA treatment records, and Social Security Administration records. With respect to his Social Security records the Veteran testified that VA has all pertinent records that were supplied to the Social Security Administration. During his March 2013 Board hearing, the undersigned explained the issues on appeal and asked question designed to elicit evidence that may have been overlooked with regard to the claims on appeal. VA's duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The Veteran was accorded VA examinations in April 2006 and January 2010. The examiners addressed the severity of the disability at issue in conjunction with a review of the claims file and physical examination of and interview with the appellant. Save for the basis for the remand discussed below there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disorder since he was last examined. 38 C.F.R. § 3.327(a). The VA examination reports are sufficiently thorough and adequate upon which to base a decision. As VA has fulfilled all duties under the Veterans Claims Assistance Act of 2000, the Board will address the merits of the claims. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, as here, the Veteran is requesting a higher rating for already established service-connected disabilities, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant on motion. Disability of the musculoskeletal system is the inability to perform normal working movement with normal excursion, strength, speed, coordination, and endurance, and that weakness is as important as limitation of motion, and that a part that becomes disabled on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, through atrophy, for example. The provisions of 38 C.F.R. §§ 4.45 and 4.59 also contemplate inquiry into whether there is limitation of motion, weakness, excess fatigability, incoordination, and impaired ability to execute skilled movements smoothly, and pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing, and weight-bearing are also related considerations. The United States Court of Appeals for Veterans Claims (Court) has held that diagnostic codes predicated on limitation of motion require consideration of a higher rating based on functional loss due to pain on use or due to flare-ups. 38 C.F.R. §§ 4.40, 4.45, 4.59; Johnson v. Brown, 9 Vet. App. 7 (1997); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The Veteran's residuals of mechanical low back pain have been rated as 10 percent disabling prior to January 8, 2007 and from March 1, 2007 to September 18, 2007. They have been evaluated as 20 percent disabling since September 19, 2007, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5237. The rating criteria for diseases and injuries of the spine are contained in 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (for, respectively, vertebral fracture or dislocation; sacroiliac injury and weakness; lumbosacral or cervical strain; spinal stenosis; spondylolisthesis or segmental instability; ankylosing spondylitis; spinal fusion; degenerative arthritis of the spine; and intervertebral disc syndrome). In pertinent part, the General Rating Formula for Diseases and Injuries of the Spine provides that with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following apply: Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height warrants a 10 percent rating. 38 C.F.R. § 4.71a Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the 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 warrants a 20 percent rating. Id. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or for favorable ankylosis of the entire thoracolumbar spine. Id. The Veteran is not currently service connected for an intervertebral disc syndrome or for degenerative disc disease, nor is he currently service connected for any neuropathic disorder secondary to mechanical low back pain, to include lower extremity radiculopathy. Hence, the rating criteria based on limitation of motion are controlling. (N.B. Any associated service connected neurological abnormalities are evaluated separately, id., and as noted above, the question of entitlement to service connection for lower extremity radicular pain is not ripe for appellate review.) Note (2):(See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Id. In order for an increased evaluation to be warranted for service-connected lumbar spine disability prior to January 8, 2007, and from March 1, 2007 to September 18, 2007, the evidence must show either forward thoracolumbar flexion to 60 degrees or less; a combined range of thoracolumbar motion of 120 degrees less; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour; or incapacitating episodes having a total duration of at least 2 weeks during a 12-month period. At an April 2006 VA examination the Veteran reported chronic low back pain that was exacerbated by work requiring lifting and bending. Physical examination revealed an antalgic gait, preserved balance, symmetry of the torso and pelvis, and tenderness to palpation around L5. There was no lordosis, scoliosis, kyphosis, and no specific paravertebral or peripheral muscle tenderness or spasm. The Veteran demonstrated flexion to 90 degrees, extension to 30 degrees, bilateral lateral flexion to 30 degrees, and bilateral lateral rotation to 30 degrees. During range of motion exercise, there was no sensory dysethesias reported but there was some pain reported. Muscle strength was normal except for significant muscle strength loss with left knee extension rated at 3/5 compare to the right at 5/5. Dorsiflexion of the left was reduced to 3/5 left side compared to the right side and plantar flexion of the right was reduced to 4/5 compared to the left side. Private sensory, motor, and reflex examination conducted in July 2006 did not show any evidence of neuropathy or radiculopathy. An October 2006 private consultation report prepared by Donald Stevens, M.D., indicates that physical examination of the Veteran's back demonstrated flexion to 85 degrees, extension to 20 degrees, and bilateral lateral bending to 20 degrees. Facet load was negative bilaterally. There was minimal tenderness just inferior to the left posterior superior iliac spine and no complaint of pain anywhere else and no tenderness anywhere else. There were no trigger points. There was no complaint of pain down the posterior left thigh. Straight leg raising tests were negative, as was the Patrick's test. Gaenslen done on the right lateral position testing left side was slightly positive for left sacroiliac pain. Muscle strength was 5/5 in all gross motor groups of all four extremities except for the left quadriceps which were 5-/5. Coordination and lower extremity reflexes were normal. Toes were down going bilaterally. Sensory examination was intact to light touch and pinprick in both lower extremities. A sacroiliac injection was recommended. A March 8, 2007 letter from Dr. Sungarian noted that the Veteran had done quite well after anterior lumbar interbody fusion on L5-S1 with cage, plate, and screws on January 8, 2007. Dr. Sungarian noted that the Veteran had some residual pain in his lower back with no residual leg pain. A March 21, 2007, private medical record indicates that on examination, flexion was decreased 50 percent and rotation was decreased 75 percent. The provider noted that the Veteran did not appear to have spasms and that his chief complaint was sacroiliac pain. In an April 26, 2007 letter, Dr. Sungarian noted that the Veteran's pain had improved following an January 2007 anterior lumbar fusion at L5 with cage, plate and end screws for lumbar spondylosis. In a July 5, 2007 letter, Dr. Sungarian noted that the Veteran's pain had largely improved but that if he stood or worked for any period of time, his pain was quite significant and did not allow him to continue. X-rays revealed that the instrumentation was in adequate position. Dr. Sungarian noted that the Veteran was given him intermittent Motrin to treat a possible spasm. In an August 16, 2007 letter, Dr. Sungarian noted that the Veteran still experienced significant low back pain after prolonged standing and sitting and that he did not believe that the Veteran was able to lift over 20 pounds. In addition, there was a question about the Veteran's ability to return to sustainable activity in the workplace. On January 7, 2010, the Veteran was seen for a VA examination. He reported stiffness, fatigue, weakness, and decreased motion. He denied spasms, paresthesia and numbness. The Veteran stated that his pain came and went with activity, that the pain was localized, and that it occurred once per week lasting for four hours. He asserted that he was unable to work due to the disorder. The Veteran also reported that he could not walk distances, or stand still for very long. He further complained of left leg weakness. While the Board has no jurisdiction to address leg pathology, as noted above, the claim of entitlement to service connection for lower extremity radiculopathy is referred to the RO. Physical examination revealed a short left leg. The appellant's gait was unsteady, he walked with a left leg limp, and used a cane to ambulate. Thoracolumbar motion studies revealed flexion to 50 degrees, extension to 15 degrees, right lateral flexion and rotation to 30 degrees, and left lateral flexion and rotation to 15 degrees. Pain was noted at the extremes of motion. There was lumbosacral tenderness, and a muscle spasm in the L5 area that was productive of an altered gait. Spinal contour was not preserved due to guarding, and the guarding produced an abnormal gait. There was evidence of lumbosacral area spinal weakness due to pain. Neurological study showed no lumbosacral motor weakness. The muscle tone and musculature were normal. Straight leg raising was negative on the right but positive on the left. There was no lower extremity atrophy or evidence of thoracolumbar ankylosis. The examiner diagnosed post operative residuals of lumbosacral fusion, and post operative pelvic fracture. The examiner noted that Social Security Administration had found the appellant to be disabled. The examiner opined that the effect of the lumbar and pelvis disorders prevented the appellant from working as a machine operator. Prior to the January 8, 2007, the manifestations of the Veteran's lumbar spine disability did not approach the severity contemplated for a rating higher than 10 percent. Forward flexion was consistently greater that 60 degrees, and the combined range of thoracolumbar motion was consistently greater than 120 degrees. From March 21, 2007, the manifestations of the Veteran's lumbar spine disability met the criteria for a 20 percent evaluation. The March 21, 2007, private medical record noted flexion was decreased 50 percent. As such, flexion on March 21, 2007 was to 45 degrees, sufficient for a 20 percent evaluation, sufficient for a 20 percent evaluation. Likewise, the January 7, 2010 VA examination showed flexion limited to 50 degrees. As the Veteran's 10 percent evaluation was assigned on March 1, 2007 following a period of surgical treatment and convalescence, the Board finds that the 20 percent evaluation is warranted from March 1, 2007 in light of the objective evidence showing a increased limitation of motion. From March 1, 2007 to January 7, 2010, the manifestations of the Veteran's service-connected lumbar spine disability did not approach the severity contemplated for a rating higher than 20 percent. As noted above the General Rating Formula is controlling regardless whether there are or are not 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. As the appellant's flexion has consistently been greater than 30 degrees there is no basis for an increased evaluation. As noted above 38 C.F.R. §§ 4.40 , 4.45, 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. Further, the Court has held that a higher rating can be based on "greater limitation of motion due to pain on use." DeLuca, 8 Vet. App. at 206. Again, however, the provisions of 38 C.F.R. § 4.71a specifically state that back disorders are to be rated under the prescribed criteria with or without symptoms such as pain (whether or not the pain radiates), with or without stiffness, and with or without aching in the area of the spine affected by residuals of injury or disease. Indeed, VA in promulgating the rating criteria for back disorders noted that the presence of pain is already taken into account in the formula. 68 Fed.Reg. 51454 -5 (Aug. 27, 2003) ("Pain is often the primary factor limiting motion, for example, and is almost always present when there is muscle spasm. Therefore, the evaluation criteria provided are meant to encompass and take into account the presence of pain, stiffness or aching, which are generally present when there is a disability of the spine.") The Board further acknowledges that the Court in Cullen v. Shinseki, 24 Vet. App. 74, 85 (2010), held that the Board must discuss any additional limitations a claimant experiences due to pain, weakness or fatigue. This obligation to discuss, however, is not an obligation to ignore the clear language of the controlling general rating formula. Here, the Board notes that the Janaury 2010 VA examination found evidence of spinal weakness. But the weakness was directly associated with lumbosacral area pain. Again, the presence of pain is anticipated by the rating criteria. Moreover, the January 2010 neurological study showed no lumbosacral motor weakness. Given that the weakness is due to pain, that pain is encompassed in the rating assigned, 68 Fed.Reg. 51454 -5 (Aug. 27, 2003), and the absence of motor weakness, the Board finds that the finding of weakness, without a corresponding evidence showing a loss of flexion to 30 degrees or less does not provide a basis for an increased rating. Therefore, the Board finds that the preponderance of the evidence is against entitlement to an evaluation in excess of 10 percent prior to January 8, 2007, for service-connected residuals of mechanical low back pain. The Board also finds that a 20 percent evaluation is in order, but no higher, from March 1, 2007 to January 7, 2010, for this disorder. In reaching this decision the Board considered the doctrine of reasonable doubt, however, except to the extent that the benefit is granted in part, the preponderance of the evidence is against the appellant's claim, and the doctrine is not for application. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Entitlement to an evaluation in excess of 10 percent prior to January 8, 2007, for residuals of mechanical low back pain is denied. Entitlement to an evaluation of 20 percent, but no higher, from March 1, 2007 to January 7, 2010, for residuals of mechanical low back pain is granted subject to the law and regulations governing the payment of monetary benefits. REMAND With respect to the issue of entitlement to service connection for a pelvis disability, March 2002 X-rays showed no bony pelvic abnormality, and sacroiliac joints were normal. The impression was normal study. Social Security records include an October 2006 letter from Dr. Stevens which indicates that left sacroiliac joint pain was the most likely source of his posterior superior iliac area pain. In April 2013 P. Kowacki, D.C., opined that the Veteran's disorder of the pelvis was at least as likely as not incurred in or caused by the claimed in-service injury, and that the disorder was at least as likely as not proximately due to or the result of a service-connected condition. The chiropractor indicated that the appellant's current complaint was consistent with described initial injury. This opinion is not adequate to grant the benefit sought, however, because the chiropractor failed to identify the "claimed condition," and failed to support the opinion with a reasoned analysis. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008). Nevertheless, the opinion is sufficient to trigger VA's duty to assist the appellant and order an examination. Thus, a medical opinion in conjunction with the review of the entire record and examination of the Veteran is warranted to determine whether or not he has a pelvic disorder that was incurred or aggravated by either active duty service, or by his service-connected low back disability. 38 C.F.R. §§ 3.159(c)(4), 3.310. With respect to the issue of entitlement to an evaluation in excess of 20 percent since January 8, 2010, for residuals of mechanical low back pain, the Veteran essentially contends that symptoms associated with the disorder are more severely disabling than reflected by the currently assigned disability evaluation and warrant a higher rating. The evidence shows that the Veteran has not undergone a VA examination since the January 2010 study. Given the appellant's credible testimony the Board finds further development to be in order. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). With respect to the claim of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders, the Veteran contends that he is unemployable due to his service-connected low back disability. This claim, however, cannot be adjudicated until all other claims have been adjudicated, to include the referred claim of entitlement to bilateral lower extremity radiculopathy secondary to mechanical low back pain. Hence, further development is in order. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to indicate if he has received any VA or non-VA medical treatment for his pelvic disorder and/or mechanical low back pain that is not part of the current record. If so, the Veteran should be provided with the necessary authorizations for the release of any treatment records not currently on file. These records should then be obtained and associated with the claims folder. The Veteran should be advised that he may also submit any evidence or further argument relative to the claim at issue. If the RO cannot locate records identified by the appellant it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Thereafter, the Veteran should be afforded the appropriate VA examination to determine the etiology of any current chronic pelvic disorder. The examiner must be provided access to, and must review, the claims files and Virtual VA before conducting the examination. The examination report should reflect that such a review was conducted. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. Following the examination the examiner must address whether the Veteran has a chronic pelvic disorder and, if so, opine whether it is at least as likely as not that the disorder is related to the Veteran's active duty service or service-connected residuals of mechanical low back pain. A fully reasoned rationale must accompany any opinion offered. 3. Following the completion of instruction number one, the Veteran should be afforded a VA examination to ascertain the severity of his residuals of mechanical low back pain. The examiner must be provided access to, and must review, the claims files and Virtual VA before conducting the examination. The examination report should reflect that such a review was made. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The examiner must address whether the Veteran's lumbar spine exhibits weakened movement, excess fatigability, or incoordination, and if feasible, these determinations should be expressed in terms of the degree of additional range of motion loss or ankylosis due to any weakened movement, excess fatigability, or incoordination. The examiner must address whether it is at least as likely as not that any lower extremity radicular pain is caused or aggravated by the Veteran's mechanical low back pain. Finally, the examiner must opine whether it is at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation solely as a result of his low back disorder and all associated pathology. A fully reasoned rationale must accompany any opinion offered. 5. The Veteran is to be notified that it is his responsibility to report for all examinations and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 , 3.655 (2012). In the event that the Veteran does not report for any ordered examination documentation should be obtained which shows that notice scheduling the examinations was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 6. After the development requested has been completed, the RO should review the examination reports to ensure that they are in complete compliance with the directives of this REMAND. The RO must ensure that the examiners documented their consideration of Virtual VA. If any report is deficient in any manner, the RO must implement corrective procedures at once 7. Thereafter, the AOJ should readjudicate the claims. If any benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative must be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims folder is returned to the Board for further appellate action 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). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs