Citation Nr: 1320062 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 10-42 095 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an increased evaluation for service-connected chronic myositis, lumbosacral paravertebral area with mild disk bulge L3-L4, L4-L5. 2. Entitlement to an increased evaluation for service-connected recurrent dislocation of the right shoulder. 3. Entitlement to service connection for essential hypertension, claimed as high blood pressure, to include as secondary to service-connected disabilities. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). ATTORNEY FOR THE BOARD L. Durham, Counsel INTRODUCTION The Veteran served on active duty from September 1972 to June 1975. These matters come to the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision. In an April 2010 rating decision, the RO assigned the Veteran's service-connected right shoulder disorder a temporary 100 percent evaluation based on surgical or other treatment necessitating convalescence, effective April 1, 2010. An evaluation of 20 percent was assigned, effective July 1, 2010. In an August 2010 rating decision, the RO again assigned the Veteran's service-connected right shoulder disorder a temporary 100 percent evaluation based on surgical or other treatment necessitating convalescence, effective April 1, 2010. However, the RO went on to assign a 20 percent evaluation, effective August 1, 2010. Since the RO did not assign the maximum disability rating possible for the entire period of time on appeal, this appeal for a higher evaluation remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). The Board notes that additional medical evidence was associated with the claims file after the most recent supplemental statement of the case (SSOC) was issued with respect to these claims. However, as this evidence only pertains to the issues on appeal that are being remanded at this time, the Board finds no prejudice to the Veteran in proceeding to adjudicate the claims as done below. The issues of entitlement to an increased evaluation for service-connected chronic myositis, lumbosacral paravertebral area with mild disk bulge L3-L4, L4-L5; entitlement to service connection for essential hypertension, claimed as high blood pressure, to include as secondary to service-connected disabilities; and entitlement to TDIU 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 The Veteran's service-connected recurrent dislocation of the right shoulder is manifested by complaints of pain, instability, stiffness, weakness, limitation of motion, decreased speed of joint motion, daily or more often locking episodes, tenderness, episodes of dislocation or subluxation several times a year but less than monthly, warmth, and swelling. CONCLUSION OF LAW Excluding the period of time on appeal for which the Veteran's right shoulder has already been assigned a temporary 100 percent evaluation, the criteria for a disability rating in excess of 20 percent for service-connected recurrent dislocation of the right shoulder have not been met. See 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5202 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim for an increased rating for his right shoulder disability, 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 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and 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. A VCAA letter dated in November 2008 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. This letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Additionally, this letter described how disability ratings and effective dates were assigned. The Board also concludes VA's duty to assist has been satisfied. The Veteran's available service treatment records and VA and private medical records relevant to the Veteran's claim are in the file. All records identified by the Veteran as relating to this claim have been obtained, to the extent possible. With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). With regard to the Veteran's claim for an increased rating for his service-connected right shoulder disorder, the Veteran was provided an examination which addressed this claim most recently in August 2010. There is no objective evidence indicating that there has been a material change in the severity of this service-connected disability since he was last examined. See 38 C.F.R. § 3.327(a) (2012). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. See VAOPGCPREC 11-95. The examiner conducted the appropriate diagnostic tests and studies and noted the Veteran's assertions. The Board finds this examination report to be thorough and consistent with contemporaneous medical records. Therefore, the examination in this case is adequate upon which to base a decision with regard to this claim. 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, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2012). But where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2012). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). The Veteran filed a claim for an increased rating for his service-connected right shoulder condition in November 2008. In a January 2009 rating decision, the RO increased the evaluation assigned to the Veteran's service-connected recurrent dislocation of the right shoulder to 20 percent, effective November 10, 2008, under Diagnostic Codes 5299-5202. In a subsequent decision, the RO assigned the Veteran's service-connected right shoulder disorder a temporary 100 percent evaluation based on surgical or other treatment necessitating convalescence, effective April 1, 2010, and assigned a 20 percent evaluation, effective August 1, 2010. The Veteran is seeking an increased rating. The assignment of a particular diagnostic code to evaluate a disability is dependent on the facts of a particular case. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Under Diagnostic Code 5202, for the major arm, a 20 percent is assigned for impairment of the humerus with infrequent episodes of recurrent dislocation at the scapulohumeral joint, and guarding of movement only at shoulder level. A 30 percent is assigned for impairment of the humerus of the major joint with frequent episodes of recurrent dislocation at the scapulohumeral joint and guarding of all arm movements. Fibrous union of the humerus warrants a 50 percent rating for the major arm. Nonunion (false flail joint) of the humerus warrants a 60 percent rating for the major arm. A maximum, 80 percent rating is assigned for loss of head (or flail joint) for the major arm. 38 C.F.R. § 4.71a, Diagnostic Code 5202 (2012). Diagnostic Code 5201 provides for ratings based on limitation of motion of the arm. Specifically, Diagnostic Code 5201 provides a 20 percent rating for limitation of motion of the major arm at shoulder level (90 degrees). 38 C.F.R. § 4.74a, Diagnostic Code 5201 (2012). A 30 percent evaluation is warranted for limitation of motion of the major arm midway between side and shoulder level (45 degrees). A 40 percent evaluation is warranted for limitation of motion of the major arm to 25 degrees from side. Additionally, the Board notes that normal ranges of upper extremity motion are defined by VA regulation as follows: forward elevation (flexion) from zero to 180 degrees; abduction from zero to 180 degrees; and internal and external rotation to 90 degrees. Lifting the arm to shoulder level is lifting it to 90 degrees. See 38 C.F.R. § 4.71, Plate I (2012). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range-of-motion measurements. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. With regard to the medical evidence of record, a May 2008 private treatment record noted the Veteran as having dislocated his shoulder. This record did not specify which shoulder. The Veteran underwent a VA examination in November 2008. The Veteran reported instability, pain, weakness, episodes of dislocation or subluxation several times a year but less than monthly, warmth, swelling, and tenderness. The Veteran reported no deformity, giving way, locking episodes, effusion, or flare-ups of joint disease. With regard to flexion, the Veteran was noted as having 0 to 130 degrees of active motion against gravity with pain beginning at 90 degrees and ending at 130 degrees. He was noted as having passive range of motion of 0 to 130 degrees with pain beginning at 90 degrees and ending at 130 degrees, and a range of motion against strong resistance of 1 to 100 degrees with pain beginning at 90 degrees and ending at 100 degrees. There was no additional limitation of motion on repetitive use. With regard to abduction, the Veteran was noted as having 0 to 110 degrees of active motion against gravity with pain beginning at 90 degrees and ending at 110 degrees. He was noted as having passive range of motion of 0 to 110 degrees with pain beginning at 90 degrees and ending at 110 degrees, and a range of motion against strong resistance of 0 to 90 degrees with pain beginning at 70 degrees and ending at 90 degrees. There was no additional limitation of motion on repetitive use. With regard to external rotation, the Veteran was noted as having 0 to 40 degrees of active motion against gravity with pain beginning at 0 degrees and ending at 40 degrees. He was noted as having passive range of motion of 0 to 40 degrees with pain beginning at 0 degrees and ending at 40 degrees, and a range of motion against strong resistance of 0 to 30 degrees with pain beginning at 0 degrees and ending at 30 degrees. There was no additional limitation of motion on repetitive use. With regard to internal rotation, the Veteran was noted as having 0 to 65 degrees of active motion against gravity with pain beginning and ending at 65 degrees. He was noted as having passive range of motion of 0 to 65 degrees with pain beginning and ending at 65 degrees, and a range of motion against strong resistance of 0 to 50 degrees with pain beginning and ending at 50 degrees. There was no additional limitation of motion on repetitive use. The examiner noted that there was no loss of a bone or part of a bone. The Veteran did have guarding of movement at shoulder level. The Veteran did not have joint ankylosis or inflammatory arthritis. He was noted as having tenderness, painful movement, weakness, abnormal motion, and guarding of movement. A May 2010 VA treatment record shortly after surgery noted right shoulder forward flexion of 0 to 90 degrees and an abduction of 0 to 50 degrees. A July 2010 VA treatment record noted a right shoulder forward flexion of 0 to 120 degrees and an abduction of 0 to 90 degrees. The Veteran underwent a VA examination in August 2010. The examiner noted that the Veteran underwent right shoulder surgery in April 2010 due to right shoulder recurrent dislocations. The Veteran reported no deformity, giving way, instability, incoordination, episodes of dislocation or subluxation, effusions, or flare-ups of joint disease. The Veteran did report pain, stiffness, weakness, decreased speed of joint motion, daily or more often locking episodes, and tenderness. Upon physical examination, the examiner noted that there are not recurrent shoulder dislocations or loss of bone or part of a bone. The examiner also noted crepitus, tenderness, weakness, and guarding of movement. Upon examination, the examiner noted a right flexion of 0 to 95 degrees, a right abduction of 0 to 122 degrees, a right internal rotation of 0 to 23 degrees, and a right external rotation of 0 to 25 degrees. The examiner noted that there is objective evidence of pain following repetitive motion, but there are no additional limitations after 3 repetitions of range of motion. There is no joint ankylosis. The examiner noted that the Veteran has not had any right shoulder dislocations since the Bankart procedure. The Veteran had a positive Hawkins-Kennedy test. As the Veteran has already been assigned a 100 percent evaluation for the period of April 1, 2010, to July 31, 2010, the Board notes that an increased rating for this time period is not available. As such, the Board will consider whether an increased evaluation is warranted for the period of time on appeal prior to April 1, 2010, and from August 1, 2010, to the present. With regard to assigning an increased rating under Diagnostic Code 5202, the Board notes there is no medical evidence of record reflecting that the Veteran's right shoulder disability manifested with frequent episodes of recurrent dislocation at the scapulohumeral joint and guarding of all arm movements, fibrous union of the humerus, nonunion (false flail joint) of the humerus, or loss of head (or flail joint) for the period of time on appeal prior to April 1, 2010, and from August 1, 2010, to the present. The Board notes that the medical evidence of record does reflect that the Veteran has experienced dislocations of his right shoulder. Specifically, he underwent a Bankart repair and capsulorrhaphy in April 2010 and was noted as having a preoperative and postoperative diagnosis of right shoulder recurrent dislocations. However, the November 2008 VA examination report noted episodes of dislocation or subluxation several times a year but less than monthly, and the August 2010 VA examination report noted no recurrent shoulder dislocations. Therefore, as the medical evidence of record does not reflect that the Veteran experienced more than several episodes of dislocation per year during the period of time on appeal, the Board does not find that the evidence supports a finding that the Veteran's right shoulder disability manifested with frequent episodes of recurrent dislocation. Additionally, while the medical evidence of record noted some guarding of movement, there is no indication in the medical evidence of record of guarding of all arm movements for any period of time on appeal. As such, an increased evaluation is not warranted under Diagnostic Code 5202 for the period of time on appeal prior to April 1, 2010, and from August 1, 2010, to the present. With regard to assigning an increased rating under Diagnostic Code 5201 for the period of time on appeal prior to April 1, 2010, and from August 1, 2010, to the present, the August 2010 VA examination report noted a right abduction of 0 to 122 degrees. The November 2008 VA examination report noted similar findings, with right abduction of 0 to 110 degrees of active motion against gravity and of passive range of motion, meaning that he could lift it slightly over shoulder level. The November 2008 VA examination report also noted a range of motion against strong resistance of 0 to 90 degrees. However, there is no indication in the diagnostic criteria that the Veteran's limitation of motion should be considered against strong resistance. Flexion has remained consistently at or around shoulder level (90 degrees), with the exception of the May 2010 post-surgical follow up examination, when a 100 percent evaluation is already in effect. A higher rating here requires flexion or abduction limited to 45 degrees or less. As such, the Board finds that a separate compensable or an increased rating is not warranted under Diagnostic Code 5201 for the period of time on appeal prior to April 1, 2010, and from August 1, 2010, to the present. With regard to assigning a higher disability rating based on functional loss as contemplated by the Court's holding under Deluca, the Board acknowledges the Veteran's complaints of pain, stiffness, and weakness. However, at the August 2010 VA examination, the examiner noted that there were no additional limitations after 3 repetitions of range of motion. At the November 2008 VA examination, the examiner also noted that there were no additional limitations after 3 repetitions of range of motion. With regard to abduction, the examiner did note that the Veteran had active motion against gravity and passive range of motion with pain beginning at 90 degrees and ending at 110 degrees, and a range of motion against strong resistance with pain beginning at 70 degrees and ending at 90 degrees. However, there was no indication that the reported pain contributed to any additional limitation of motion. Additionally, there is no other medical evidence of record from this time period documenting additional functional loss based on the criteria outlined in Deluca. Therefore, an increased evaluation is not available under 38 C.F.R. §§ 4.40 or 4.45 or under the provisions of Deluca. The Board has reviewed the remaining diagnostic codes relating to shoulder disabilities, but finds that they are not applicable in this case because the primary features of their criteria do not exist. See 38 C.F.R. § 4.71a, Diagnostic Codes 5200 and 5203 (2012). There is no competent evidence of record indicating that the Veteran experiences ankylosis of the scapulohumeral articulation (Diagnostic Code 5200) or impairment of the clavicle or scapula (Diagnostic Code 5203). The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where scheduler evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three- step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's service-connected right shoulder disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. There is no evidence in the medical records of an exceptional or unusual clinical picture. The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. In summary, the Board concludes that the preponderance of the evidence is against the claim for an increased rating. The benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application as there is not an approximate balance of evidence. See generally Gilbert, supra; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Assignment of staged ratings has been considered and assigned appropriately. Hart, supra. ORDER Entitlement to an increased evaluation for service-connected for recurrent dislocation of the right shoulder is denied. REMAND After a thorough review of the Veteran's claims folder, the Board has determined that additional development is necessary prior to the adjudication of these claims. With regard to the Veteran's service-connected chronic myositis, lumbosacral paravertebral area with mild disk bulge L3-L4, L4-L5, the Board notes that the Veteran indicated in a February 2013 statement that he underwent back surgeries in September 2011 and September 2012. Specifically, the Veteran submitted medical evidence documenting an operation that he underwent on September 18, 2012, due to a medical diagnosis of L1 fracture/painful hardware. The Court has held that VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). As the Veteran has undergone lumbar spine operations since his most recent VA spine examination in August 2010, this issue must be remanded in order to afford the Veteran a new VA examination to determine the current severity of his service-connected lumbar spine disorder. With regard specifically to the Veteran's claim for entitlement to TDIU, the Board finds that it is unclear from the evidence of record whether the Veteran is precluded solely by reason of any service-connected disabilities from obtaining and maintaining any form of substantial gainful employment consistent with his education and occupational experience. As such, the Veteran should be provided a VA general medical examination to determine whether he is currently precluded solely by reason of any service-connected disabilities from obtaining and maintaining any form of substantial gainful employment consistent with his education and occupational experience. With regard to the Veteran's essential hypertension claim, the Veteran asserted in his October 2010 substantive appeal that he has high blood pressure caused by constant back pain. In light of the Veteran's assertions regarding a relationship between his hypertension and his back disability, the Board finds that the necessity for a VA examination is shown for the proper assessment of the Veteran's claim. 38 U.S.C.A. § 5103A (West 2002). As such, the Veteran should be scheduled for a VA examination to determine whether he has hypertension that was caused or aggravated by his active duty service or any service-connected disabilities. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion or ordering a medical examination). Additionally, with regard to the Veteran's claim for service connection for hypertension as secondary to service-connected disabilities, the Veteran was issued a November 17, 2008, letter which provided the proper notice of the requirements for establishing service connection on a direct basis. However, this letter did not provide the Veteran with the proper notice requirements for establishing service connection on a secondary basis. As such, the Veteran should be given proper notice of the requirements for establishing secondary service connection according to 38 C.F.R. § 3.310. Finally, upon remand, as the Veteran receives regular treatment at VA, efforts must be made to obtain any private and VA treatment records relating to the claims on appeal that have not yet been associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with appropriate notice of VA's duties to notify and to assist. Particularly, the Veteran should be properly notified of how to substantiate a secondary service connection claim under 38 C.F.R. § 3.310. Ask that the Veteran provide sufficient information, and if necessary, authorization to enable the RO to obtain any additional pertinent evidence not currently of record, to specifically include any recent medical records relating to his lumbar spine disability or his lumbar spine operations and rehabilitation. Attempts should be made to obtain these medical records. Associate any records received, including negative responses, with the claims file. 2. Obtain any and all relevant VA treatment records that have not yet been associated with the claims file. 3. Provide the Veteran with a VA examination in order to determine the current severity of his lumbar spine disability. The claims folder must be made available to the examiner and pertinent documents therein should be reviewed by the examiner. The examiner must note in the examination report that the claims folder was reviewed in conjunction with the examination. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. Specifically, the examiner should note the Veteran's ranges of motion for his lumbar spine, as well as any recent incapacitating episodes that the Veteran has experienced and the specific causes of such incapacitating episodes. The examiner should comment as to whether the lumbar spine exhibits weakened movement, excess fatigability, incoordination, or pain on use attributable to the service-connected disability (if feasible, these determinations should be expressed in terms of the degree of additional range of motion loss due to these symptoms). The examiner should also discuss whether weakened movement, excess fatigability, incoordination, or pain significantly limit functional ability during flare-ups or when the lumbar spine is used repeatedly over a period of time (these determinations should also, if feasible, be portrayed in terms of the degree of additional range of motion loss due to these symptoms on repetitive use or during flare-ups). The examiner should note whether the Veteran experiences any neurological abnormalities as a result of his lumbar spine disability. The complete rationale for any opinions expressed should be provided. 4. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his hypertension. All appropriate tests and studies should be performed and all clinical findings reported in detail. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. Additionally, the examiner should elicit from the Veteran a history of symptoms relating to his hypertension. After reviewing the file, examining the Veteran, and noting his reported history of symptoms, the examiner should determine whether the Veteran has a current diagnosis of hypertension. Then, opinions must be provided as to the following: a. whether it is at least as likely as not that the Veteran's hypertension had its onset in service or was otherwise caused or aggravated by his active service. b. whether it is at least as likely as not that the Veteran's hypertension was caused or aggravated by his service-connected disabilities, to include his theory that his back pain has elevated his hypertension. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner must provide the underlying reasons for any opinions provided. 5. Schedule the Veteran for an appropriate VA examination for his claim for entitlement to TDIU. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. The examiner should elicit a history from the Veteran regarding his recent employment and examine the Veteran thoroughly. After reviewing the file, noting the Veteran's reported history, and examining the Veteran, the examiner should render an opinion as to whether the Veteran is precluded solely by reason of his service-connected disabilities from obtaining and maintaining any form of substantial gainful employment consistent with his education and occupational experience. The examiner is advised that only symptoms related to the Veteran's service-connected disabilities should be considered in determining whether the Veteran is precluded from obtaining and maintaining employment. Symptoms related to nonservice-connected disabilities should not be considered in this determination. The examiner should provide a complete rationale for any opinions provided. 6. Then, readjudicate the claims. In particular, review all the evidence that was submitted since the most recent SSOC was issued. If the benefits sought remain denied, the Veteran should be provided a SSOC. After the Veteran has have been given the applicable time to submit additional argument, the claims should be returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No further action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that her cooperation in VA's efforts to develop her claims, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. See 38 C.F.R. § 3.655 (2012). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). ______________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs