Citation Nr: 1319332 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 09-24 037 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUES 1. Entitlement to a rating in excess of 10 percent for right knee sprain. 2. Entitlement to a rating in excess of 10 percent for left knee sprain. 3. Entitlement to service connection for a lumbar spine disability, claimed as chronic back pain, to include as secondary to service-connected right and left knee sprains. ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from May 1997 to May 2001. This appeal to the Board of Veterans' Appeals (Board) arose from a February 2007 rating decision in which the RO, inter alia, denied the Veteran's claims for increased ratings for right knee and left knee sprains, as well as denied a claim for service connection for chronic back pain.. In November 2007, Veteran filed a notice of disagreement (NOD) with the assigned disability rating for his right and left knee sprains as well as the denial of his claim for service connection for chronic back pain. A statement of the case (SOC) was issued in June 2009 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in July 2009. A review of the Virtual VA claims processing system reveals VA treatment records dated through January 2011; the January 2013 supplemental SOC (SSOC) notes review of such records. The Board's decision on the claims for higher ratings for right and left knee sprains are set forth below. The remaining claim on appeal is addressed in the remand following the order; this matter is being remanded to the RO, via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran when further action, on his part, is required. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim herein decided have been accomplished. 2. Pertinent to the June 2006 claim for increase, the Veteran has described the giving way of his knees ; however, no instability or subluxation of either knee has been demonstrated during VA examination or treatment, and neither knee has been productive of locking; effusion or ankylosis, or shown to involve impairment of the tibia or fibula; genu recurvatum; or dislocation or removal or the semilunar cartilage. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right knee strain are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.27, 4.71a, 5257 (2012). 2. The criteria for a rating in excess of 10 percent for left knee strain are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.27, 4.71a, 4.124a, 5257 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations 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). The notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 - 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. A May 2006 pre-rating letter provided pertinent notice to the Veteran in connection with his claim for increased ratings for right and left conditions. That letter indicated what information and evidence was needed to substantiate each claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence would be obtained by VA. The letter also provided him with general information pertaining to VA's assignment of disability ratings and effective dates in accordance with Dingess/Hartman. After the Veteran's disagreement with the initial rating assigned, a March 2009 letter set forth applicable criteria for higher ratings for knee impairment (the timing and form of which suffices for Dingess/Hartman). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided. Pertinent medical evidence associated with the claims file consists of the report of the VA examination, as well as the Veteran's VA treatment records. A December 2007 Social Security Administration response indicated that the Veteran did not receive benefits. Also of record and considered in connection with the appeals are various written statements provided by the Veteran. The Board finds that no further RO action on either claim , prior to appellate consideration, is required. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO the Veteran has been notified and made aware of the evidence needed to substantiate these claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with either claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Higher Ratings Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). The following analysis is therefore undertaken with the possibility that "staged rating"(assignment of different ratings may be warranted for distinct periods of time, based on the facts found) may be warranted. The Veteran contends that higher ratings are warranted for his right and left knee disabilities as he suffers from a cartilage problem that has caused constant irritation. Historically, the Veteran's right and left knee disabilities have each been characterized as sprain and the rating has been assigned under Diagnostic Codes 5299-5257. the diagnostic codes for unlisted knee disability and "other" knee impairment such as recurrent subluxation or lateral instability. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Under Diagnostic Code 5257, a 10 percent rating is assigned for slight disability, a 20 percent rating is assigned for moderate disability, and a 30 percent rating is assigned for severe disability. 38 C.F.R. § 4.71a. The terms "slight," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The relevant evidence in the record includes the Veteran's VA treatment records, as well as a report of VA examination conducted in September 2006. This evidence establishes that there was no instability or subluxation found on objective examination. These findings are indicative of a level of impairment consistent with no more than the 10 percent rating assigned for each knee. The report of a September 2006 VA orthopedic examination reflects the Veteran reports of knee instability, giving way and pain without stiffness, weakness, episodes of dislocation or subluxation, locking or effusion. He reported weekly flare-ups that were moderately severe and which lasted for several hours. On September 2006 VA examination, clicks or snaps were noted. Examination was negative for tendon abnormality, bumps consistent with Osgood-Schlatters disease, crepitation, masses behind the knee, grinding, instability, patellar abnormality or meniscus abnormality. Accompanying X-rays found the knees to be normal bilaterally. A February 2010 VA treatment note indicates that the Veteran's movements and ambulation were normal. Accompanying knee X-rays were negative for fractures, dislocations or bony or soft tissue abnormalities bilaterally. Considering the pertinent facts in light of the applicable rating criteria, the Board finds that, at no point pertinent to the current claim for increase has either knee disability warranted a rating higher than the 10 percent rating assigned. Despite the Veteran's complaints of knee instability, no instability has been demonstrated on examination or during treatment. On testing in September 2006, instability was not found and the Veteran denied using any assistive devices. In addition, subluxation was not found on objective examination or during treatment and the Veteran has not alleged such symptoms. Therefore, neither the right nor left knee warrants an increased rating under Diagnostic Code 5257. As regards to the Veteran's assertion that a higher rating for dislocated cartilage is warranted for each knee, objective examination has been negative for, and the Veteran has not alleged, frequent episodes of locking and joint effusion which would warrant such a finding. The objective evidence of record does not establish that cartilage has been removed from either knee. Moreover, the Veteran has not alleged that underwent a procedure to remove such cartilage but rather has alleged that such a procedure may be required in the future. A rating under Diagnostic Codes 5258 or 5259 is therefore not warranted. The Board also finds that no other diagnostic code provides a basis for any higher rating for either knee. There are no objective medical findings of, and the Veteran has not alleged, locking, impairment of the tibia or fibula, genu recurvatum or arthritis. In the absence of such findings, evaluating either of the Veteran's knees under Diagnostic Codes 5003, 5256, 5262, or 5263 is not warranted. See 38 C.F.R. 4.71a. Moreover, neither disability is shown to involve any other factor(s) that would warrant evaluation of the disability under any other provision(s) of the rating schedule. In assessing the severity of each disability under consideration, the Board has considered the Veteran's assertions regarding his symptoms, which he is certainly competent to provide. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, the criteria needed to support higher ratings as the required medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of a higher rating for either disability pursuant to any applicable criteria at any point pertinent to this appeal. Additionally, the Board finds that at no pertinent point has either disability under consideration been shown to be so exceptional or unusual as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (cited in the June 2009 SOC). The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disabilities at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, supra. In this case, the Board finds that the applicable schedular criteria are adequate to rate each disability under consideration at all points pertinent to this appeal. The rating schedule fully contemplates the described symptomatology, and provides for ratings higher than that assigned based on more significant functional impairment. Significantly, there is no medical indication or argument that the applicable criteria are otherwise inadequate to rate the disability. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Finally, the Board notes that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which a higher rating is sought, then part and parcel to that claim for a higher rating is the matter of whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. See Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the Veteran reported current employment as a park ranger in connection with July 2009 VA treatment ,and the record includes nothing to indicate that Veteran is not still employed. As there is no suggestion of actual or effective unemployment, consideration of a TDIU in connection with either higher rating claim on appeal is not warranted. For all the foregoing reasons, the Board finds that, there is no basis for a staged rating for either the right or left knee disability, pursuant to Hart, and that each claim for higher rating must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of any higher rating for either knee, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER A rating in excess of 10 percent for right knee sprain is denied. A rating in excess of 10 percent for left knee sprain is denied. REMAND The Board's review of the claims file reveals that further RO action on the claim for service connection for a lumbar spine disorder is warranted. The Veteran asserts that his service-connected right and left knee strains caused a lumbar spine disorder. In the alterative, he asserts that his in-service lateral muscle injury resulted in his lumbar spine disorder. Pertinent to this claim, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002) 38 C.F.R. § 3.303 (2012). Under 38 C.F.R. § 3.310, service connection may also 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). Service treatment records document complaints of pain to the left-side mid-region of the back after unloading a "five ton with seabags" and an assessment of a latisimus dorsi strain with possible muscle spasm in October 2000. The Veteran underwent a VA examination in September 2006. The examiner opined that he was unable to resolve the etiology of the Veteran's claimed lumbar spine disorder without resorting to mere speculation as the Veteran's low back pain was non-reproducible and was unconfirmed by medical and X-ray examinations. In cases involving a VA examiner's opinion that a finding cannot be rendered without resorting to speculation, the Court has noted that VA is not required to proceed through multiple iterations of repetitive medical examinations until it has obtained a conclusive opinion or formally declares that further examinations would be futile. Jones v. Shinseki, 23 Vet. App. 382, 387 (2010). It must be clear, however, from some combination of the examiner's opinion and the Board's analysis of the record, that the examiner has not invoked the phrase "without resort to mere speculation" as a substitute for full consideration of all pertinent and available medical facts. Id. The United States Court of Appeals for Veterans Claims (Court) prescribed that such a standard requires that the examiner's assessment be made after all due diligence has been exercised in seeking relevant medical information that may have bearing on the requested opinion. Id. at 389. Although a bald statement by the examiner that it would be speculative to render an opinion as to etiology or diagnosis is fraught with ambiguity, the Board may rely on an examiner's conclusion that an opinion would be speculative if such an opinion is supported by an explanation of the basis for such an opinion or is otherwise apparent in the Board's review of the evidence. Id. at 390. VA must also ensure that it is clear, from either the examiner's statements or the Board decision, that the examiner has considered "all procurable and assembled data" by obtaining all tests and records that might reasonably illuminate the medical analysis. Id. (quoting Daves v. Nicholson, 21 Vet. App. 246 (2007)). Thus, the examiner's use of the phrase "without resort to mere speculation" should reflect the limitations of knowledge in the medical community at large and not those of a particular examiner. Finally, the examiner should clearly identify precisely which facts cannot be determined. In this case, the VA examiner does not identify with precision the exact facts which cannot be ascertained from the record, the presence of which would permit him to formulate an opinion as to the etiology of the claimed lumbar spine disorder. Moreover, the VA examiner's expressed findings and conclusion do not appear to take into consideration the Veteran's documented in-service latisimus dorsi strain with possible muscle spasm. In addition, the Board notes that an assessment of degenerative joint disease was made in December 2010. Accordingly, it is evident that the VA examiner's conclusion is not based upon full consideration of all pertinent and available medical facts as required under Jones. As such, the Board finds that the opinions expressed by the September 2006 VA examiner are inadequate. See 38 C.F.R. § 3.159(c)(4). Accordingly, and given the other development being accomplished, the Board finds that further medical opinion with sufficient findings-based on full consideration of the Veteran's documented medical history and assertions, and supported by a thorough, clearly-stated rationale-is needed to resolve the claim for service connection for a lumbar spine disability. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the RO should arrange for the Veteran to undergo VA examination, by an appropriate physician, at a VA medical facility. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may result in denial of the claim for service connection (as the original claim will be considered on the basis of the evidence of record). See 38 C.F.R. § 3.655. 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 date and time of the examination sent to him by the pertinent VA medical facility. Prior to arranging for further examination, to ensure that the record before the examiner is complete, and that all due process requirements are met, the RO should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. As for VA records, the claims file currently includes outpatient treatment records from the VA Medical Center (VAMC) in Chillicothe, Ohio, dated through January 2011. Hence, there exists the possibility that 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 should obtain from the Chillicothe VAMC all records of pertinent evaluation and/or treatment of the Veteran since January 2011, following the current procedures prescribed in 38 C.F.R. § 3.159(c) with regard to requests for records from Federal facilities. The RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim 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); but see also 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). The RO should specifically request that the Veteran provide, or provide appropriate authorization for it to obtain any outstanding private medical records, including copies of all clinical records from private chiropractic treatment. The Board notes that the Veteran suggested that he had undergone such private chiropractic treatment in a July 2009 VA treatment note. 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. 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; 38 C.F.R. § 3.159. 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. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain from the Chillicothe VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran, dated since January 2011. All procedures set forth in 38 C.F.R. § 3.159(c) with regards to requesting records from Federal facilities should be followed. All records and/or responses received should be associated with the claims file. 2. Furnish to the Veteran a letter requesting that he provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claims remaining on appeal that is not currently of record. Specifically request that the Veteran provide, or provide appropriate authorization for to obtain, any outstanding private records, including copies of any private chiropractic treatment. 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). 3. 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. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA spine examination, by an appropriate physician, at a VA medical facility. The entire claims file, to include a complete copy of this 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 indicated tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should clearly identify all current lumbar disability(ies). Then, with respect to each such diagnosed disability, the examiner should render 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 during service, or is otherwise medically related to service; or, if not (b) was caused or is aggravated (worsened beyond natural progression) by service-connected right and/or left knee disability(ies). In rendering each requested opinion, the examiner should consider and discuss all relevant evidence, to include medical documents, and all lay assertions. The examiner should specifically consider the Veteran's contentions that in-service latisimus dorsi strain with possible muscle spasm resulted in his current lumbar spine disorder. The examiner should set forth all examination findings and testing results, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 5. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 6. 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). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim remaining on appeal in light of all pertinent evidence and legal authority. 8. If the benefit sought on appeal remains denied, furnish to the Veteran 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 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