Citation Nr: 1319129 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 05-15 039 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to an increased rating for post operative residuals of a fractured right ankle with traumatic arthritis, evaluated as 20 percent disabling prior to April 4, 2012 and evaluated as 40 percent disabling as of April 4, 2012. 2. Entitlement to an increased rating for residuals of a low back injury with degenerative disc disease (DDD), evaluated 20 percent disabling prior to April 4, 2012 and evaluated as 40 percent disabling as of April 4, 2012. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. G. Alderman, Counsel INTRODUCTION The Veteran served on active duty from September 1964 to June 1981. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a February 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The RO, in pertinent part continued 20 percent ratings for both the post operative residuals of a right ankle fracture with traumatic arthritis ("right ankle disorder") and the residuals of a low back injury with DDD ("low back disorder"). The Veteran testified before the undersigned Veterans Law Judge at a hearing held at the RO in January 2008. A transcript of the hearing is associated with the claims file. In April 2008 and December 2011, the Board remanded these issues for further development; that development has been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). A February 2010 private treatment record from Dr. S.G. and a September 2012 statement from the Veteran raised the issue of entitlement to service connection for neuritic symptoms secondary to the service-connected right ankle disorder. A February 2011 statement raised issues involving entitlement to an increased rating for service-connected wrist and knee disorders and entitlement to service connection for a right hip disorder. These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). The Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issues of entitlement to increased ratings for wrist and knee disorders and entitlement to service connection for a right hip disorder and for neuritic symptoms secondary to the service-connected right ankle disorder have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issue of entitlement to an increased rating for a low back injury with DDD 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 1. Prior to January 11, 2010, the Veteran's service-connected right ankle was not ankylosed. 2. The Veteran had his service-connected right ankle replaced on January 11, 2010. 3. Since February 11, 2011, the Veteran has had chronic residuals consisting of severe painful motion or weakness. CONCLUSIONS OF LAW 1. Prior to January 11, 2010, the criteria for a rating in excess of 20 percent for post operative residuals of a fractured right ankle with traumatic arthritis were not met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.51, 4.71a, Part 4, Diagnostic Code 5010, 5270, 5271 (2012). 2. The criteria for a 100 percent rating for post operative residuals of a fractured right ankle with traumatic arthritis have been met for the period from January 11, 2010 to February 11, 2011. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.30, 4.71a, Diagnostic Code 5056 (2012). 3. For the period since February 11, 2011, the criteria have been met for a 40 percent rating, and no higher. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.51, 4.71a, Part 4, Diagnostic Code 5010, 5056, 5270, 5271 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For an increased-compensation claim, section 5103(a) requires, at a minimum, that the Secretary (1) notify the claimant that to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; (3) and further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant [DC's]," and that the range of disability applied may be between 0% and 100% "based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment." Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Here, the duty to notify was not satisfied prior to the initial unfavorable decision on the claim by the RO. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the RO's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the RO) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). In this case, the duty to notify was satisfied subsequent to the initial RO decision by way of a letter sent to the Veteran in May 2008 that fully addressed all notice elements. The letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. Although the notice letter was not sent before the initial RO decision in this matter, the Board finds that this error was not prejudicial to the Veteran because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the Veteran been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the RO also readjudicated the case by way of a supplemental statement of the case issued in June 2011 after the notice was provided. For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. The duty to assist the Veteran has also been satisfied. The Veteran's service treatment records, as well as identified private and VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In June 2005, February 2009, and April 2012, VA provided the Veteran with VA examinations to determine the severity of his right ankle disorder. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159; see McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The medical examinations are adequate, as the reports show that the examiners reviewed the claims file, performed comprehensive examinations, and provided detailed descriptions of current right ankle symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board also finds that there has been substantial compliance with its April 2008 remand as the RO provided the Veteran with an adequate notice and assistance letter, obtained outstanding service personnel and service treatment records, obtained outstanding private treatment records, and provided an adequate VA examination. There has also been substantial compliance with the December 2011 Board remand as the RO updated the Veteran's mailing address, obtained outstanding private treatment records, and provided the Veteran with an additional VA examination. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). Increased Rating A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran seeks an increased rating for his right ankle disorder, evaluated as 20 percent disabling prior to April 4, 2012 and as 40 percent disabling as of April 4, 2012. The RO has rated the disorder under Diagnostic Code 5010-5271, limitation of motion of the ankle, and Diagnostic Code 5010-5270, ankylosis of the ankle. 38 C.F.R. § 4.71a. Hyphenated diagnostic codes are used when a rating for a particular disorder under one diagnostic code is based on rating the residuals of that disorder under another diagnostic code. 38 C.F.R. § 4.27 (2012). The first four digits, 5010 in this case, is the diagnostic code for the disability. Id. The second four digits after the hyphen, 5270 and 5271 in this case, is the diagnostic code used to rate the residuals of that disability. Id. Diagnostic Code 5010, arthritis due to trauma, substantiated by X-ray findings, is rated as degenerative arthritis under Diagnostic Code 5003. 38 C.F.R. § 4.71a. Diagnostic Code 5003 provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Id. Under Diagnostic Code 5270, ankylosis of the ankle, a 20 percent rating is warranted when the ankle is ankylosed in plantar flexion at less than 30 degrees. A 30 percent rating is warranted when the ankle is ankylosed in plantar flexion between 30 and 40 degrees or when in dorsiflexion between zero and 10 degrees. A 40 percent rating is warranted when the ankle is ankylosed in plantar flexion at more than 40 degrees; or in dorsiflexion at more than 10 degrees; or with abduction, adduction, inversion, or eversion deformity. 38 C.F.R. § 4.71a. Normal range of motion in an ankle is considered to be 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5271, limited motion of the ankle, a 10 percent rating is warranted for moderate limitation of motion of the ankle while a 20 percent rating is warranted for marked limitation of motion of the ankle. Higher ratings are not provided under this diagnostic code. Id. At the outset, the Board notes that the Veteran underwent ankle replacement surgery on his service-connected right ankle on January 11, 2010 but that the RO did not address the surgery in the August 2012 rating decision or supplemental statement of the case. Under Diagnostic Code 5056, ankle replacement, and Note (1) addressing prosthetic implants, the Veteran is entitled to one month of convalescence under 38 C.F.R. § 4.30 followed by one year rated at 100 percent for his ankle replacement. 38 C.F.R. § 4.71a. Consequently, for this 13 month period, from January 11, 2010 to February 11, 2011, the Veteran is entitled to a 100 percent rating for his ankle replacement. After the 13 month period, Diagnostic Code 5056 provides for a 40 percent rating for chronic residuals consisting of severe painful motion or weakness. Intermediate degrees of residual weakness, pain, or limitation of motion, are rated by analogy to 5270 or 5271. The minimum rating for residuals is 20 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5056. In this case, the evidence includes a February 2003 treatment record from Dr. A.J.R. which shows severe limitation of motion of the right ankle. Plantar flexion was "-30 degrees with further plantar flexion to about 40 degrees." The physician observed tenderness over the anterior capsule of the ankle joint. The diagnosis was severe end stage degenerative arthritis, bone on bone, with deformity in the tibiotalar joint. The physician recommended a heel lift. A March 2003 VA treatment record shows the Veteran felt pain with extension of the right ankle. A September 2003 record shows complaints of pain and decreased range of motion (ROM) of the right ankle. In October 2003, the Veteran and physician discussed an ankle implant. A May 2004 letter from Dr. A. J. R. indicates that he had been treating the Veteran for about 18 months and that the Veteran had had a severe fracture of the right ankle. The Veteran's ankle was severely arthritic and he was unable to walk without a limp. Dr. A.J.R. recommended plantar fusion with a long post-operative recovery period. The Veteran had a VA examination in June 2005. The examiner reviewed the claims file and noted the May 2003 x-rays of the ankle, which showed a healed fracture of the mid fibula and narrowing of the tibial talar joint. The Veteran was not working at the time of the examination. He reported constant right ankle pain and daily swelling but denied having flare-ups. He said he used a brace periodically but did not have it with him during the examination. The condition impacted his ability to stand longer than 15 minutes or walk more than a half mile. The examiner observed antalgic gait on the right with a slightly externally rotated gait and noted multiple well-healed scars. The anterior joint space and lateral ligament region were tender to palpation. The examiner observed chronic moderate swelling about the ankle and moderate calf atrophy on the right. ROM of the ankle showed dorsiflexion to 0 degrees, plantar flexion to 15 degrees, and to 10 degrees each for inversion and eversion. The Veteran did not complain of pain and did not have additional limitation after repeat dorsiflexion. The examiner observed that the right ankle caused severe functional impairment and some incoordination and limping; however, there was no weakness or fatigability. In a statement submitted in October 2008, the Veteran said his ankle had fused and he could no longer flex the joint. Walking was difficult. He could not walk on hard surfaces for more than five minutes before the pain, discomfort, and swelling would start. He said his foot externally rotated to accommodate his body. He noted that in September 2008, a physician had said his ankle had fused, limiting his ROM to 5 percent or less. September 2008 private treatment records from OIMA show that the Veteran's right ankle ROM was reduced to less than 10 percent. During his January 2009 hearing before the Board, the Veteran said his ankle was ankylosed and that he did not have full ROM. He reported severe pain and said that since his VA examination in June 2005, his condition had deteriorated and he could no longer flex his ankle. He also reported external rotation to a 20 or 30 degree angle. He said his options were to undergo ankle fusion, ankle replacement, or do nothing. The Veteran had a VA examination in February 2009. The examiner reviewed the claims file and examined the Veteran. The Veteran reported right ankle pain and swelling and said he had one to two flare-ups per week with increased walking. He treated the condition with ibuprofen. He said that he could stand for a maximum of 15 minutes, that he could walk a couple of blocks, that he had difficulty with stairs, and that he could not run. The examiner observed antalgic gait. On examination, the right ankle had several well-healed scars and swelling. ROM of the ankle showed dorsiflexion to 3 degrees, plantar flexion to 30 degrees, inversion to 20 degrees, and eversion to 10 degrees. The Veteran did not complain of pain and did not have additional limitation after three repetitions. The examiner did not observe weakness or fatigability but noted some incoordination and antalgic gait. Private treatment records from Dr. S.G. show that the Veteran had a right ankle replacement on January 11, 2010. The operative report indicates that the surgery was a large operation with a long recovery time. In February 2010, the Veteran complained of neuritic symptoms radiating into the foot. He was permitted to weight-bear to tolerance and work on range of motion exercises. In March 2010, the Veteran reported that his neuritic symptoms and numbness had improved. He was wearing a cast boot. The physician noted swelling and decreased sensation in the plantar aspect of the foot. The ankle was able to dorsiflex above neutral and plantar flex to 20 degrees. Follow-up records show continued improvement and in September 2010, the physician noted that the Veteran was very active and not restricting activity; however, he continued to have nerve symptoms, pain, numbness and weakness. A November 2011 follow-up indicated that the Veteran had little ankle pain and was gaining calf strength. He was able to push off of his toes but still had some numbness and stiffness of the toes. In March 2012, the Veteran submitted a statement indicating that his condition had worsened. He said he had surgery in January 2010 to replace the ankle joint and that after two years of rehabilitation, he is able to walk but has little control and sensation in his toes. He said he has less mobility than before the surgery. The Veteran had a VA examination for his right ankle in April 2012. The examiner noted the 2010 joint replacement. The Veteran reported having three to four flare-ups per year, especially with weather changes. Flare-ups caused pain and stiffness and he said he must rest and avoid activity until the pain returns to baseline. ROM of the right ankle showed plantar flexion and dorsiflexion at 0 degrees, with pain. ROM was the same after repetitive testing. The examiner said the Veteran had additional limitation in ROM after repetitive testing. Functional impairment included less movement than normal, weakened movement, excess fatigability, pain on movement, swelling, deformity, disturbance of locomotion and interference with sitting, standing and weight-bearing. The examiner indicated that the Veteran had ankylosis of the right ankle in plantar flexion less than 30 degrees, with abduction, adduction, inversion or eversion deformity, and in poor weight-bearing position. Also noted was Achilles tendonitis or Achilles tendon rupture. The examiner also said the chronic residuals of the ankle replacement included severe painful motion and/or weakness. The examiner opined that the Veteran's right ankle did not result in functional impairment such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. Functional impairments included the inability to bear weight on the right ankle for more than 5 minutes, walk more than one block, stand for more than five minutes, sit for more than 20 minutes, or climb more than one flight of stairs without difficulty. The examiner observed surgical scars but indicated that none were painful or unstable. Further, the total area of all related scars was less than 6 square inches. Based on the foregoing, the Board finds that the preponderance of the evidence weighs against the assignment of a rating in excess of 20 percent prior to January 11, 2010. As indicated above, for a higher rating, the Veteran's ankle must be ankylosed. While the evidence shows severely limited ROM, the evidence does not show ankylosis during that period prior to January 11, 2010. The Board has considered the Veteran's statements as well as the functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The complaints of pain and functional impact have been considered in the current 20 percent rating for marked limitation of motion of the ankle during that period. The complaints and functional impact do not rise to the level nearly approximating the criteria for ankylosis. Consequently, entitlement to a rating in excess of 20 percent prior to January 11, 2010 is denied. As of February 11, 2011, the Board finds that the Veteran's disability picture more closely approximates the criteria for a 40 percent rating. The evidence shows that the Veteran was not provided with a VA examination following his ankle surgery until April 2012, at which time the VA examiner noted abduction, adduction, inversion or eversion deformity of the right ankle, and poor weight-bearing position. The examiner also noted chronic residuals consisting of severe painful motion and/or weakness. Thus, based on the examiner's findings, the Veteran's symptoms qualify for a 40 percent rating under Diagnostic Code 5056 since February 11, 2011. 38 C.F.R. § 4.71a. A rating in excess of 40 percent is not warranted from February 11, 2011, because the schedular criteria do not provide for higher ratings. Further, the amputation rule prohibits the assignment of a rating in excess of 40 percent for disabilities below the knee. The amputation rule states, in pertinent part: "[t]he combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed." 38 C.F.R. § 4.68. The "combined evaluations for disabilities below the knee shall not exceed the 40 percent evaluation, diagnostic code 5165." Id. Since the Veteran is currently rated 40 percent for his right ankle, and since 40 percent is the rating he would receive if the limb were amputated, the Board cannot grant a rating in excess of 40 percent for the ankle disorder from February 11, 2011. Extraschedular Rating Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2012). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, a task performed either by the RO or the Board. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature to render the assigned ratings inadequate. The Veteran's service-connected right ankle disorder has been considered under all applicable diagnostic codes. As noted above, prior to January 11, 2010, the right ankle did not present with ankylosis or symptoms of the severity that could be analogous to ankylosis. As of February 11, 2011, per the schedular criteria and the Amputation Rule, the Veteran has been rated at the maximum allowable rating of 40 percent. Even if the amputation rule did not apply, the Board finds that the schedular criteria for a 40 percent rating reasonably describe the Veteran's disability level and symptomatology as of February 11, 2011. Further, the Veteran has submitted no evidence showing that this disorder has markedly interfered with his employment status beyond that interference contemplated by the assigned evaluations, and there is also no indication that this disorder has necessitated frequent periods of hospitalization during the pendency of this appeal. Consequently, the Board concludes that the schedular evaluations are adequate and that referral of the Veteran's case for extraschedular consideration is not required. See 38 C.F.R. § 4.71a, Diagnostic Codes 5056, 5270, 5271; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996). ORDER For the period prior to January 11, 2010, a rating in excess of 20 percent for the right ankle disorder is denied. A 100 percent rating is granted for the right ankle disorder for the period from January 11, 2010 to February 11, 2011. For the period from February 11, 2011, a 40 percent rating (and no higher) is granted for the right ankle disorder. REMAND The Veteran seeks an increased rating for his service-connected low back disorder. In September 2012, the Veteran submitted a letter indicating that he had been hospitalized for severe back pains a couple of months prior and that afterwards, he had been examined by Dr. M.L., a neurosurgeon; had received epidurals that were administered by Dr. A.N; and had underwent physical therapy. Unfortunately, treatment records from these providers have not been submitted for review. Since these records address the severity of the service-connected low back disorder, a remand is necessary so that the RO can attempt to obtain these records for review. In addition, the Veteran has complained of pain radiating from his back down to his lower extremities during the pendency of his claim. In April 2012, a VA examiner found that the Veteran's radiculopathy is directly related to the IVDS. Review of the claims file does not show that the RO considered whether a separate rating is warranted for the Veteran's radiculopathy. VA regulation requires that neurologic abnormalities associated with a service-connected spine disorder be assessed and rated separately when considering the overall disability picture of that spine disorder. See 38 C.F.R. § 4.71(a), Diagnostic Codes 5235 to 5243, Note (1). Therefore, on remand, the RO must consider whether a separate rating is warranted for the Veteran's radiculopathy, to include obtaining an additional VA examination, if necessary. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with the opportunity to identify any additional relevant medical treatment records, from either private or VA facilities, which pertain to the claim seeking an increased rating for a low back disorder, that have not yet been associated with the claims file. Appropriate steps should be taken to obtain any such identified records, to include records identified in the September 2012 correspondence from the Veteran (i.e. Dr. M.L, Dr. A.N., the hospital, and the physical therapist). If any identified records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, and include a copy of such in the claims file. The Veteran must be notified of the attempts made to obtain outstanding records, informed as to why further attempts would be futile, and allowed the opportunity to obtain or provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After associating all outstanding records with the claims folder, if the evidence shows that the Veteran's low back disorder has worsened since the April 2012 VA examination, schedule the Veteran for a VA examination to determine the nature, extent, frequency and severity of any orthopedic and neurologic impairment related to the Veteran's back disorder. The claims folder should be made available to and reviewed by the examiner. The examiner should identify all orthopedic pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, the examiner should express any functional loss in terms of additional degrees of limited motion of the Veteran's back. In addition, if possible, the examiner should state whether the back disorder has been productive of any incapacitating episodes, which are defined as periods of acute signs and symptoms that require bed rest prescribed by a physician or treatment by a physician, and if so, the frequency and duration of those episodes. Further, the examiner should also discuss the nature and severity of any neurological impairment such as radiculopathy or neuropathy. In doing so, the examiner must identify the specific neurological tests conducted in making this determination. The examiner should report whether the service-connected low back disorder results in neuritis, neuralgia, or partial or complete paralysis of any nerve that has been shown to be affected by this disorder. Any additional complications besides the neurological complications should be noted and the frequency and severity of such problems should be addressed in conjunction with the appropriate criteria. All findings and conclusions should be set forth in a legible report. 3. Then readjudicate the Veteran's claim, to include whether a separate rating is warranted for the Veteran's radiculopathy of the lower extremities. If any benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case. It must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and discussion of all pertinent regulations. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration. No action by the Veteran is required until he receives further notice; however, the Veteran is advised that failure to cooperate by reporting for examination without good cause may result in adverse consequences. 38 C.F.R. § 3.655 (2012). The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs