Citation Nr: 1320216 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 10-47 005A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to a schedular evaluation in excess of 20 percent for residuals of a fracture of the T12 vertebra with associated degenerative disc disease (DDD) and spondylosis, to include whether a separate compensable rating is warranted for radiculopathy of the lower extremities. 2. Entitlement to an extraschedular evaluation for residuals of a fracture of the T12 vertebra with associated DDD and spondylosis. 3. Entitlement to a separate compensable evaluation for neurologic abnormalities associated with residuals of a fracture of the T12 vertebra with associated DDD and spondylosis, to include bowel and bladder impairment, and erectile dysfunction. 4. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran had active service from October 1951 to October 1955. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The RO in Los Angeles, California, certified the appeal to the Board. In September 2012, the Veteran testified at Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of the hearing is of record. In February 2013, the Board remanded the appeal for additional development. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. The Virtual VA file has been reviewed in conjunction with the disposition of the issues on appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to an extraschedular evaluation for a thoracic spine disability, a separate compensable evaluation for neurologic abnormalities, and a 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 At no time during the appeal period has the Veteran's service-connected thoracic spine disability been manifested by ankylosis, forward flexion of the thoracolumbar spine limited to 30 degrees or less, incapacitating episodes, or neurologic impairment of the lower extremities. CONCLUSION OF LAW The criteria for a schedular evaluation in excess of 20 percent for residuals of a fracture of the T12 vertebra with associated DDD and spondylosis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5235 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Duties to Notify and Assist The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in April 2010 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations are in order with respect to the claim herein decided. The Veteran was also provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court has held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, at the September 2012 prehearing conference and during the hearing itself, the undersigned Veterans Law Judge identified the issue on appeal (Transcript (Tr.), pg. 2). Information was also solicited regarding the evaluation of the Veteran's service-connected thoracic spine disability, including a description of his symptoms and effects on his daily life (Tr., pgs. 4-10). During the hearing, the Veteran indicated that the disability had worsened since the most recent VA examination in 2010 (Tr., pg. 3), and the Board remanded the issue to afford the Veteran another VA examination. A VA examination was conducted in April 2013 and all outstanding VA treatment records were associated with the claims file. He indicated that he had not received any other treatment for his back and the hearing discussion did not reveal any other evidence that might be available that has not been submitted. Furthermore, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the manner in which the Board hearing was conducted. As such, the Board finds that, consistent with Bryant, the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claim on the current record. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. The evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran's disability, 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. In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in an appeal from an initial disability rating was not limited to that reflecting the then current severity of the disorder. In Fenderson, the United States Court of Appeals for Veterans Claims (Court) discussed the concept of the "staging" ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127. See also Hart v. Mansfield, 21 Vet. App. 505 (2007). In addition, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C .F.R. § 4.59. The Veteran's thoracic spine disability has been evaluated as 20 percent disabling under Diagnostic Code 5235, for vertebral fracture or dislocation. See 38 C.F.R. § 4.71a. Service connection has also been awarded for associated DDD and spondylosis. DDD or intervertebral disc syndrome (IVDS) is evaluated under Diagnostic Code 5243. Spondylosis or degenerative arthritis is evaluated under Diagnostic Code 5242. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine, (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease: A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. Note 1 provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note 2 provides that, for VA compensation purposes, the combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. Note 4 provides that range of motion measurements are to be rounded to the nearest five degrees. Note 6 provides that disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a. Under Diagnostic Code 5243, intervertebral disc syndrome or disc disease, may be rated under the General Rating Formula for Diseases and Injuries of the Spine, which includes combining separate evaluations of the chronic orthopedic and neurologic manifestations, or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, which are rated on the total duration of incapacitating episodes over the past 12 months, whichever results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent evaluation is to be assigned for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation is to be assigned for IVDS with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent evaluation is to be assigned for IVDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months. Note 1 to the Diagnostic Code 5243 defines an incapacitating episode as a period of acute signs and symptoms that requires bed rest prescribed by and treatment by a physician. Supplementary Information in the published final regulations states that treatment by a physician would not require a visit to a physician's office or hospital but would include telephone consultation with a physician. If there are no records of the need for bed rest and treatment, by regulation, there are no incapacitating episodes. 38 C.F.R. § 4.71a. In claims for VA benefits, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Analysis In this case, the Veteran filed a claim for an increased rating for his service-connected thoracic spine disability in March 2010. In a June 2010 rating decision, VA increased the disability rating from 10 to 20 percent from March 9, 2010. During a May 2010 VA examination, the Veteran complained of constant pain, which he described as moderate and localized. He said the pain was exacerbated by physical activity and relieved by rest, hydrocodone, and acetaminophen. He also complained of stiffness, fatigue, decreased motion, and numbness. He said he was limited in walking and could only walk 100 yards on average. He also reported having bladder and bowel problems, as well as erectile dysfunction, related to his spine condition. On physical examination, there was no evidence of radiating pain on movement. Muscle spasms were present, but did not result in abnormal gait. Spinal contour was preserved. There was tenderness along the parathoracolumbar spine. Muscle tone and muscular were normal without evidence of weakness. Straight leg raises were negative. There was no atrophy and no ankylosis of the thoracolumbar spine. Initial range of motion of the thoracolumbar spine was limited to 70 degrees of flexion with pain at 50 degrees; 15 degrees of extension with pain at 10 degrees; 15 degrees of lateral flexion with pain at 10 degrees, bilaterally; and 20 degrees of rotation with pain at 10 degrees, bilaterally. After repetitive testing, range of motion was limited to 50 degrees of flexion, to 10 degrees of extension, to 10 degrees of bilateral lateral flexion, and to 10 degrees of bilateral rotation. The examiner indicated that after repetitive use, joint function was additionally limited by pain, fatigue, and lack of endurance, but not weakness and incoordination. Rectal and genital examinations were declined. The neurological examination was normal without evidence sensory deficits, motor weakness, or decreased reflexes. The examiner indicated that there were no signs of lumbar IVDS with chronic and permanent nerve root impairment. X-rays showed compression of the T12 vertebra, spondylosis from T3 to T12, and mild DDD at the T10-T11 and T11-T12 levels. The examiner opined that the effect on the Veteran's usual occupation was impaired prolonged sitting, standing, walking, repetitive bending, and heavy lifting. During the September 2012 Board hearing, the Veteran testified that he was walking was becoming increasingly more difficult (Tr., pgs. 4, 9). He also said he had difficulty performing household chores and sitting for prolonged periods of time (Tr., pg. 5). He said he was unable to twist his back like he used to (Tr., pg. 7). An October 2012 VA primary care note indicates that the Veteran had a recent exacerbation of low back pain that had not improved. He was advised to take Vicodin for pain control and Flexeril as needed. During an April 2013 VA examination, the Veteran complained of increased pain with activity. For example, he said he could not drag the garbage can all the way to the street without either stopping and resting for five minutes or asking his wife to complete the task. He also reported lower extremity numbness, left more than right, urinary incontinence and frequency, and fecal incontinence. He said he had flare-ups with increased pain, decreased mobility, and an inability to stand or sit for a long period of time. On physical examination, range of motion of the thoracolumbar spine was normal with pain at the endpoints. There was no change in range of motion with repetitive testing; however, the examiner indicated that the Veteran had additional functional loss that involved pain on movement, instability of station, disturbance of locomotion, and interference with sitting, standing and/or weight-bearing. The Spinal and paraspinal muscles were tender. There was no guarding or muscle spasm. Muscle strength, reflex, and sensory examinations were normal. The examiner indicated that there were no signs of radiculopathy and no nerve root impairment. The examiner also indicated that the Veteran did not have IVDS. The examiner noted that the Veteran had urinary incontinence, frequency, and urgency and had been diagnosed with hypertonic bladder and benign prostatic hypertrophy. It was also noted that the Veteran reported fecal incontinence for the past month, which had not been worked up. During the examination, the Veteran reported that he owned and operated a liquor store for 20 years and retired secondary to age in 1999. He said that if he were to work, he would be unable to stand for such a long period of time as was required in his previous line of work. He also said that he could not sit for extended periods because it caused numbness in his buttocks and sometimes in his legs, which would preclude a desk job. The examiner seemed to question whether the service-connected injury to the T12 vertebra caused the urinary and fecal incontinence, but stated that regardless, "these are fairly significant barriers to gainful employment in anyone, let alone an 80 year old." Considering the evidence as outlined above, the Board finds that a higher 40 percent schedular evaluation rating is not warranted for the Veteran's thoracic spine disability. To warrant a higher 40 percent rating under the General Rating Formula, the evidence must show forward flexion of the thoracolumbar spine limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. During the appeal period, at worse, forward flexion was limited to 70 degrees with pain beginning at 50 degrees. The evidence also indicates that the Veteran does not have complete ankylosis of the thoracolumbar spine, favorable or unfavorable. The Board acknowledges that the May 2010 VA examiner indicated that joint function of the spine was additionally limited after repetitive use by pain, fatigue, and lack of endurance. However, even with repetitive testing, forward flexion was only limited to 50 degrees. In addition, despite the Veteran's testimony that his back disability had worsened since 2010, the April 2013 VA examination showed improvement in his range of motion with full movement in all directions and pain only occurring at the endpoints. Even with repetitive testing, there was no additional functional limitation in his range of motion. Based on the foregoing, the Board finds that the Veteran's thoracic spine symptomatology is adequately compensated by the 20 percent rating. The Board finds no basis for the assignment of any higher rating under 38 C.F.R. §§ 4.40 , 4.45, and 4.59. See DeLuca, 8 Vet. App. at 204-7. The Board has also considered the criteria set forth in the Formula for Rating IVDS Based on Incapacitating Episodes. Although the April 2013 VA examiner stated that the Veteran did not have IVDS, prior X-ray reports indicated that there was DDD at the T10-T11 and T11-T12 levels. In any event, the Veteran did not report having any incapacitating episodes requiring bed rest prescribed by a physician, let alone for a total period of time that would warrant a higher, 40 percent evaluation. Therefore, an evaluation higher than 20 percent is not warranted on this basis. As noted above, the Board must also determine whether a separate compensable evaluation is warranted for any associated objective neurologic abnormalities. Here, the evidence suggests possible bowel and bladder impairment and erectile dysfunction, which will be addressed in the remand portion of this decision. With regard to the Veteran's complaints of numbness in the lower extremities, the objective medical evidence of record does not support a separate evaluation. Neurologic examinations in May 2010 and April 2013 were normal with no sensory deficits observed. Motor and reflex examinations of the lower extremities have also been normal. Moreover, the April 2013 VA examiner indicated that there were no signs or symptoms of radiculopathy. For these reasons, the Board finds that a separate compensable evaluation is not warranted for neurologic impairment in the lower extremities. The Board has also considered the Veteran's lay statements. The Veteran is competent to report his observations with regard to his thoracic spine disability, including pain, stiffness, weakness, and limited mobility. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds his statements consistent with the rating assigned. To the extent he argues his symptomatology is more severe, his statements must be weighed against the other evidence of record. Here, the Board finds the specific examination findings of trained health care professionals to be of greater probative weight than the Veteran's more general lay assertions. For these reasons, the Board finds that a schedular evaluation in excess of 20 percent for the thoracic spine disability is not warranted. In this case, the Board concludes that there is no basis for staged ratings of the Veteran's thoracic spine disability as his symptoms have been essentially the same throughout the appeal period. Furthermore the Board finds that a schedular evaluation in excess of 20 percent is not warranted. As the preponderance of the evidence is against the claim for a higher rating, the "benefit-of- the-doubt" rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert, 1 Vet. App. at 50. ORDER Entitlement to a schedular evaluation in excess of 20 percent for residuals of a fracture of the T12 vertebra with associated DDD and spondylosis, is denied. REMAND As noted above, the Veteran reported that he owned and operated a liquor store for 20 years. He retired in 1999 due to his age; however, the April 2013 VA examiner opined that the Veteran had "fairly significant barriers to gainful employment." In this regard, the Veteran reported that he could not stand for prolonged periods of time, which was required in his previous line of work. He also said that he could not sit for prolonged periods of time, which would preclude a desk job. Given the medical evidence suggesting that the Veteran can no longer work in his usual occupation due to, at least in part, his thoracic spine disability, the Board finds that the claim for a TDIU is essentially a component of the claim for a higher rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). See also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (holding that where a veteran submits evidence of a medical disability; makes a claim for the highest rating possible; and submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a TDIU). The Board also finds that consideration as to whether the Veteran is entitled to an extraschedular evaluation is warranted. The determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three step inquiry. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If the RO or Board determines that (1) the schedular rating does not contemplate the claimant's level of disability and symptomatology, and (2) the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, then (3) the case must be referred to an authorized official to determine whether, to accord justice, an extraschedular rating is warranted. Id. In this case, the RO has not considered whether the Veteran is entitled to a higher rating on an extraschedular basis or whether he is entitled to a TDIU due to his service-connected disabilities. The Board finds that RO should adjudicate these matters, in the first instance, to avoid any prejudice to the Veteran. See e.g. Bernard v. Brown, 3 Vet. App. 384 (1993). In addition, further development is needed as to the issue of whether a separate compensable rating is warranted for neurologic abnormalities associated with the thoracic spine disability, to include bowel and bladder impairment and erectile dysfunction. During the May 2010 VA examination, the Veteran reported having bladder and bowel impairment, as well as erectile dysfunction, due to his spine disability; however, the examiner did not provide an opinion as to etiology. During the April 2013 VA examination, the Veteran reported having bladder impairment along with a one-month history of fecal incontinence; however, the examiner's opinion regarding etiology was not clear. In one section of the report, the examiner indicated "yes" to the question of whether the Veteran had neurologic abnormalities or findings related to a thoracolumbar spine condition, noting complaints of urinary and fecal incontinence. However, when discussing functional impact, the examiner noted that the Veteran had also been diagnosed with hypertonic bladder and benign prostatic hypertrophy and that these conditions might be contributing factors. The examiner further noted that while an injury to the T12 vertebra can cause bowel and bladder impairment, the Veteran did not seem to have an injury to the nerve root and that if the injury were to cause bowel and bladder impairment, it would have presented immediately after the injury rather than 60 years later. Hence, the examination report seemingly includes conflicting opinions. For this reason, the Board finds that another VA examination and opinion is needed. The claims file currently includes VA outpatient treatment records from the VA Greater Los Angeles Healthcare System dated through May 2013, which indicate the Veteran is receiving regular ongoing treatment at VA. Therefore, on remand, the RO should obtain any outstanding records of treatment or evaluation. 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). Regarding the Veteran's bladder impairment, VA outpatient urology notes indicate the Veteran was also is receiving care through Kaiser Permanente. Therefore, on remand, the RO should make reasonable efforts to obtain these records. 38 U.S.C.A. § 5103(A); 38 C.F.R. § 3.159(c)(1). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should send to the Veteran and his representative a letter requesting that he provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claims remaining on appeal. Specifically, request that he provide authorization forms necessary to allow the RO to attempt to obtain his private treatment records from Kaiser Permanente. The RO's letter should specifically explain what is needed to support a claim for a higher extraschedular evaluation, pursuant to 38 C.F.R. § 3.321(b), as well as what is needed to support a claim for a TDIU, to include on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). If the Veteran responds, the RO should assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. 2. The RO should obtain all outstanding records of VA evaluation and/or treatment of the Veteran. All records/responses received should be associated with the claims file. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, the RO should schedule the Veteran for a VA genitourinary examination to assess the nature and etiology of any erectile dysfunction and bladder impairment. The examiner should address the Veteran's complaints of erectile dysfunction, and urinary incontinence, frequency, and urgency. For each disorder diagnosed, the examiner should clarify whether it is at least as likely as not (at least 50 percent likely) due to the Veteran's service-connected thoracic spine disability. The examiner should provide a complete rationale for all of the opinions expressed in his or her report. If the examiner is unable to provide one or more of the requested opinions, than he or she should explain why this is the case. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, the RO should schedule the Veteran for a VA rectum and anus examination to assess the nature and etiology of any fecal incontinence. The examiner should address the Veteran's complaints of fecal incontinence associated with his service-connected thoracic spine disability. For each disorder diagnosed, the examiner should clarify whether it is at least as likely as not (at least 50 percent likely) due to the Veteran's service-connected thoracic spine disability. The examiner should provide a complete rationale for all of the opinions expressed in his or her report. If the examiner is unable to provide one or more of the requested opinions, than he or she should explain why this is the case. 5. After the above has been completed to the extent possible, the RO should review the record and conduct any other development as may be indicated by the responses received as a consequence of the action taken in the preceding paragraphs. Specific to the claims of entitlement to an extraschedular evaluation and a TDIU, the RO may decide to pursue further development of the Veteran's employment history or to obtain additional medical evidence or medical opinion, as is deemed necessary. If additional development is needed, such should be accomplished. 6. After completing the requested action, and any additional notification and/or development deemed warranted, the RO should adjudicate the claims of entitlement to a separate compensable evaluation for neurologic abnormalities associated with the thoracic spine disability, to an extraschedular evaluation for the thoracic spine disability, and to a TDIU, in light of all pertinent evidence and legal authority. The RO should specifically consider and discuss whether the procedures for referral for consideration of an extraschedular rating for the thoracic spine disability or a TDIU on an extraschedular basis, pursuant to 38 C.F.R. § 3.321(b) or 4.16(b), respectively, are appropriate. 7. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes citation to and discussion of all additional legal authority considered (to particularly include 38 C.F.R. §§ 3.321(b) and 4.16(b)), along with 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 appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs