Citation Nr: 1321374 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 11-28 723 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for orthopedic manifestations of a lumbar spine disability. 2. Entitlement to an initial rating in excess of 10 percent for neurological manifestations of a lumbar spine disability. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1954 to April 1958. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico, which granted service connection for lumbar degenerative joint disease with an initial 20 percent rating and for radicular pain of the left hip with an initial 10 percent rating. The Veteran's claims have previously been characterized to include only a claim for an increased rating for radicular pain in the left hip. The Board must consider all neurological manifestations of the lumbar spine disability in connection with the Veteran's claim for an increased rating of his spine disability, regardless of the affected extremity. Therefore, the issues on appeal have been recharacterized. 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 issue of entitlement to a TDIU is REMANDED to the RO via the Appeals Management Center, in Washington, D.C. FINDINGS OF FACT 1. The Veteran's lumbar spine disability is manifested by forward flexion limited by pain to no worse than 40 degrees and neither ankylosis nor incapacitating episodes have been shown. 2. The Veteran's neurological impairment of the left lower extremity has been manifested by symptoms that approximate no more than mild incomplete paralysis of the sciatic nerve, and neurological impairment of the right lower extremity has been manifested by symptoms that are no more than slight in severity. 3. The evidence does not show such an exceptional disability picture that the available schedular ratings for the service-connected disabilities are inadequate. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for degenerative joint disease of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5237. 2. The criteria for a disability rating in excess of 10 percent for neurological impairment affecting the left lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8520. 3. The criteria for a compensable disability rating for neurological impairment affecting the right lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8520. 4. The criteria for referral of the Veteran's disabilities for consideration of an extraschedular rating are not met. 38 C.F.R. § 3.321(b)(1) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify a Veteran of the information and evidence necessary to substantiate a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). VA also has a duty to assist Veterans in the development of claims. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and representative, if any, of any information, and any 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). Proper notice 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. The notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The issue of a higher initial disability rating arises from disagreement with the initial ratings assigned. Once a decision awards service connection, a disability rating, and an effective date, notice has served its purpose, and further notice is no longer required because the claim has already been substantiated. Sutton v. Nicholson, 20 Vet. App. 419 (2006). Because the issues on appeal relate to the assignment of a higher initial rating for service-connected conditions, the Board concludes that the notice requirements have been satisfied. VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). The service medical records have been associated with the claims file. All identified and available treatment records have been secured, which includes VA examinations and VA health records. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). More specifically, a VA examination must be conducted when the evidence of record does not show the current state of the Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). When VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran was provided with VA examinations in March 2007 and September 2012. The examination reports indicate that the examiners reviewed the Veteran's claim file and past medical history, recorded his current complaints, conducted appropriate evaluations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board concludes that the examination reports are adequate for the purpose of rendering a decision in the instant appeal. 38 C.F.R. § 4.2 (2012); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). While the Veteran has provided certain minor corrections to the September 2012 examination report, neither the Veteran nor his representative have contended that the examinations are themselves inadequate. In March 2013, the Veteran presented testimony before the undersigned Veterans Law Judge, and a transcript of that hearing has been associated with the record. The Board observes that all due process concerns have been satisfied. 38 C.F.R. § 3.103 (2012). Accordingly, the Board will proceed to a decision. Increased Ratings Disability ratings are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4 (2012). When there is a question as to which of two ratings 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 (2012). Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2012). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consideration must be given to whether staged ratings should be assigned to compensate a higher level of disability at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The assignment of a particular diagnostic code is completely dependent on the facts of a particular case. Butts v. Brown, 5 Vet. App. 532 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Separate disabilities arising from a single disease entity are to be rated separately. 38 C.F.R. § 4.25 (2012); Esteban v. Brown, 6 Vet. App. 259 (1994). However, pyramiding, rating the same manifestation of a disability under different diagnostic codes, is to be avoided when rating service-connected disabilities. 38 C.F.R. § 4.14 (2012). Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40 (2012). When making a rating determination, VA must consider whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. 38 C.F.R. § 4.45 (2012); Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca v. Brown, 8 Vet. App. 202 (1995). Spine disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher rating when all disabilities are combined. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). Spine ratings involve consideration of the level of impairment of the veteran's ability to engage in ordinary activities, including employment, and an assessment of the effect of pain on those activities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (2012). The General Rating Formula for Diseases and Injuries of the Spine provides for a 20 percent rating 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 assigned for forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2012). For rating intervertebral disc syndrome based on incapacitating episodes, a 20 percent rating is assigned for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is assigned for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is assigned for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (2012). An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1 (2012). The normal range of motion for the thoracolumbar spine is as follows: forward flexion of 0 to 90 degrees, extension of 0 to 30 degrees, left and right lateral flexion of 0 to 30 degrees, and left and right lateral rotation of 0 to 30 degrees. The normal combined range of motion of the thoracolumbar spine (the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation) is 240 degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2) (2012). When rating diseases and injuries of the spine, any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2012). Turning first to orthopedic manifestations of the Veteran's disability, the Veteran underwent a VA examination in March 2007. At that time, the Veteran had, at worst, forward flexion to 40 degrees as a result of pain, stiffness, and lack of endurance with repetitive use; extension to 10 degrees; bilateral lateral flexion to 10 degrees; and bilateral lateral rotation to 20 degrees. The Veteran had pain at the ends of his ranges of motion. The Veteran did not wear a brace. He had no history of falls, and he could walk up to one-half mile. The Veteran indicated that he tried to exercise care when bending, twisting, and lifting, and he limited his activities to avoid flare-ups. The Veteran avoided driving for long distances. The Veteran's disability had no impact on his feeding, bathing, dressing, toileting, and grooming; it had a mild effect on shopping. It had a moderate effect on chores, recreation, and travel, and it had a severe effect on exercise and sports. The Veteran was independent in his self-care, and he had experienced no incapacitating episodes in the last year. The Veteran's spine, limbs, posture, and gait were all normal. The Veteran had no spasm, weakness, or point tenderness. In a September 2012 VA examination, the Veteran indicated that he could not lift, squat, or bend. Walking and cold weather worsened the Veteran's symptoms, and flare-ups of the Veteran's condition caused him to experience additional pain. The Veteran had forward flexion to 50 degrees with pain, or 40 degrees upon repeated testing; extension to 20 degrees, or 15 degrees with pain; bilateral lateral flexion to 30 degrees or more, or 20 degrees with pain; and bilateral lateral rotation to 30 degrees, but on the left side to 25 degrees upon repeated testing. With repeated testing, the Veteran had less movement, pain, and disturbance of locomotion. The Veteran had tenderness, guarding, and muscle spasm that resulted in an abnormal gait. The examiner diagnosed the Veteran with intervertebral disc syndrome of the thoracolumbar spine, but the examiner noted that the Veteran had not experienced any incapacitating episodes. The Veteran used a cane. The Veteran indicated in March 2013 that the September 2012 examination report should have additionally indicated that he used a cane. Applying the relevant rating criteria, the Board observes Veteran has never been diagnosed with ankylosis, nor have his symptoms closely approximated ankylosis or immobility. On the contrary, the record shows that the Veteran has maintained limited motion in the thoracolumbar spine throughout the course of the appeal. A rating of 50 percent or greater is therefore unwarranted at any time under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2012). To warrant a 40 percent rating, the Veteran must demonstrate forward flexion of the thoracolumbar spine limited to 30 degrees or less. The Veteran's forward flexion has never been limited to 30 degrees or less in any of the objective evidence of record. At worst, the Veteran had forward flexion limited to 40 degrees, taking into account pain with repeated motion. Without forward flexion of the thoracolumbar spine limited to 30 degrees or less, a disability rating in excess of 20 percent is unavailable to the Veteran. In reviewing the evidence, the Board considered functional loss due to pain and weakness that causes additional disability beyond that which is reflected on range of motion measurements. 38 C.F.R. § 4.40 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board has considered the effects of weakened movement, excess fatigability, and incoordination. 38 C.F.R. § 4.45 (2012). Although the Board accepts the Veteran's competent and credible assertions that his lumbar spine disability causes him to experience pain, the Board has taken this into account in its above discussion of range of motion. The rating schedule does not require a separate rating for pain itself. Spurgeon v. Brown, 10 Vet. App. 194 (1997). Furthermore, even when the Veteran's complaints of pain are considered, the Board concludes that the overall manifestations of his lumbar spine disability do not demonstrate a degree of functional loss akin to the symptoms associated with a disability rating greater than 20 percent. The Veteran has stated on a number of occasions, for example in October 2011, that he is entitled to a greater rating based on his lost range of motion. The Veteran indicated that because testing revealed that he had only approximately 44 percent of a normal combined range of motion, he is entitled to a disability rating of approximately 56 percent. In other words, the Veteran argued that he was entitled to a one percent disability rating for each degree of motion that he lacked. While the Board acknowledges his argument, the regulations pertaining to the rating of spine disabilities are clear regarding the criteria applicable to greater ratings, and they do not provide for ratings based on the formula that the Veteran has advanced. The Board is bound by the regulatory criteria in rating disabilities. With regard to a greater rating based on intervertebral disc syndrome, the Veteran has been diagnosed with intervertebral disc syndrome, but the evidence of record does not suggest that the Veteran has suffered from incapacitating episodes. The term incapacitating episodes means a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. The Board acknowledges the Veteran's contentions that he suffers from incapacitating episodes. During his March 2013 hearing before the undersigned, the Veteran stated that he experienced incapacitating episodes two to three times each week. The Veteran described periods when he experienced pain of such severity that he needed to lie down for relief. While the Board accepts the Veteran's contention that his condition causes him pain that requires him to lie down, the evidence does not suggest that the periods of bed rest have been prescribed by a physician. The Veteran stated during his hearing that he was receiving medical treatment for his back pain. Without physician-prescribed periods of bed rest, the Veteran is not entitled to a greater rating based on incapacitating episodes. In sum, the Board finds that the orthopedic manifestations of the Veteran's lumbar spine disability do not warrant a rating in excess of 20 percent at any time. Turning next to neurological manifestations, the Veteran's neurological manifestations of the left lower extremity are currently rated 10 percent disabling under Diagnostic Code 8520, for paralysis of the sciatic nerve. The Veteran is not in receipt of a compensable rating for neurological manifestations affecting his right lower extremity. The term incomplete paralysis indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The rating schedule does not define the terms mild, moderate, or severe as used in the diagnostic codes. Instead, adjudicators must evaluate all of the evidence and render a decision that is equitable and just. 38 C.F.R. § 4.6 (2012). Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve. Disability ratings of 10 percent, 20 percent and 40 percent are assigned for incomplete paralysis that is mild, moderate, or moderately severe in degree, respectively. A 60 percent rating is warranted for severe incomplete paralysis with marked muscle atrophy. Complete paralysis of the sciatic nerve is rated 80 percent and contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). In March 2007, a VA examiner noted that the Veteran had no numbness, weakness, bladder complaints, or bowel complaints. The Veteran's neurological examination was unremarkable, with normal motor function, reflexes, and sensory function. The straight leg raise test was normal to 90 degrees. In September 2012, a VA examiner noted the Veteran's complaints that he experienced pain that radiated into his left leg and occasionally into his right leg. The Veteran indicated that his left leg occasionally felt as if it was asleep. The Veteran's muscle strength, sensory testing, and reflex testing were all normal. The straight leg test was negative. The Veteran denied experiencing constant pain, and he indicated that he experienced mild intermittent pain bilaterally. The Veteran had no paresthesias or dysesthesias, and he had mild numbness in the left lower extremity. With regard to the Veteran's left lower extremity, the Board finds that a rating in excess of 10 percent for the Veteran's neurological manifestations in the left lower extremity is unwarranted. The medical record is negative for clinical findings showing diminished motor function, reflexes, or sensory function consistent with a finding of moderate incomplete paralysis. No clinician has described the Veteran's neurological symptoms as moderate in severity. Instead, the Veteran's symptoms primarily involve sensory complaints such as experiencing pain and numbness. The Board finds that the complaints are most consistent with the current 10 percent rating. With regard to the Veteran's right lower extremity, the Board finds that the Veteran's neurological manifestations do not rise to the level of mild in severity. While the Board acknowledges the Veteran's contentions that he occasionally experiences pain in his right lower extremity, clinical findings have consistently failed to demonstrate symptoms more nearly approximating mild incomplete paralysis. Sensory testing has been normal and straight leg raising has been negative. The Board finds that the complaints are wholly subjective, but do not rise to the level of mild incomplete paralysis. Therefore, the Board finds that a compensable rating for the neurological manifestations affecting the Veteran's right lower extremity is unavailable. The Board has considered whether a higher rating might be warranted for any time during the pendency of this appeal. Fenderson v. West, 12 Vet. App. 119 (1999). However, the weight of the credible evidence demonstrates that the orthopedic manifestations of the Veteran's lumbar spine disability warrant no more than a 20 percent rating, the neurological manifestations affecting the Veteran's left lower extremity warrant no more than a 10 percent rating, and the neurological manifestations affecting the Veteran's right lower extremity do not warrant a compensable rating. All reasonable doubt has been resolved in favor of the veteran in making this decision. The preponderance of the evidence is against the assignment of any higher ratings. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extraschedular Considerations In addition, the Board has considered whether the claims should be referred for consideration of an extraschedular rating. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors that render application of the schedule impractical. Fisher v. Principi, 4 Vet. App. 57 (1993). There is a three-step inquiry to determine a veteran's entitlement to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. Second, if the schedular rating does not contemplate the Veteran's level of disability and symptomatology and is found to be 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 rate a Veteran's disability picture and that picture has 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 extra-schedular rating. Thun v. Peake, 22 Vet. App. 111 (2008). The Board finds that the rating criteria are not inadequate, and it does not appear that the Veteran has exceptional or unusual disability due to his spine disability. He merely disagrees with the assigned ratings provided by the rating schedule for his level of impairment and with the regulatory scheme for rating disabilities. He does not have any symptoms from his service-connected disabilities that are unusual or are different from those contemplated by the schedular criteria. The available schedular ratings are adequate. Therefore, referral for extraschedular consideration is not warranted. ORDER An initial rating in excess of 20 percent for orthopedic manifestations of a lumbar spine disability is denied. An initial rating in excess of 10 percent for neurological manifestations of a lumbar spine disability is denied. REMAND T issue of a TDIU is part of an increased rating claim when a request for TDIU is reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). The Board finds that possible entitlement to TDIU has been raised by the record, and the claim must be remanded for additional evidentiary development. In March 2007, a VA examiner noted that the Veteran was retired. In September 2012, a VA examiner found that the Veteran's conditions would prohibit him from engaging in physical employment as a result of impaired ability to lift, bend, squat, and walk. The examiner further stated that the Veteran's conditions would have a mild effect on sedentary employment. In his March 2013 hearing before the undersigned, the Veteran indicated that he had last worked approximately two years before the hearing as a self-employed repairman, and that his service-connected disabilities rendered him unable to work. Accordingly, an examination to determine the effects of the Veteran's service-connected disabilities on his employability is warranted. Accordingly, the case is REMANDED for the following actions: 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. Schedule the Veteran for an examination with an examiner of appropriate expertise to evaluate the effects of service-connected disabilities on the ability to obtain substantially gainful employment. The examiner should offer an opinion regarding the Veteran's ability to obtain and maintain gainful employment consistent with his education and occupational experience. The opinion should be offered without consideration of age and any nonservice-connected disabilities. The examiner must review the claims file and must note that review in the report. Specifically, the examiner is requested to offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected disabilities (lumbar spine disability, right hip radicular pain, and left eye injury) are so severe as to preclude substantially gainful employment. If the Veteran is capable of work, the examiner should state the type of work that the Veteran can perform and what accommodations would be required due to the service-connected disabilities for the Veteran to maintain that employment. The examiner should not base the opinion solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. Ferraro v. Derwinski, 1 Vet. App. 326 (1991). The complete rationale for all opinions expressed should be provided, to include reference to pertinent evidence where appropriate. 2. Then readjudicate the claim. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655 (2012). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs