Citation Nr: 1322254 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 10-17 958 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for radiculopathy of the right lower extremity. 3. Entitlement to a disability rating in excess of 20 percent for degenerative disc disease L5-S1 prior to October 20, 2012. 4. Entitlement to a disability rating in excess of 40 percent for degenerative disc disease L5-S1 from October 20, 2012. 5. Entitlement to a separate rating for radiculopathy of the left lower extremity prior to October 20, 2012. 6. Entitlement to a disability rating in excess of 10 percent for radiculopathy of the left lower extremity from October 20, 2012. 7. Entitlement to a compensable disability rating for hemorrhoids with rectal bleeding. 8. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Andrew L. Wener, Attorney WITNESSES AT HEARING ON APPEAL Veteran and friend ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran served on active duty from September 1978 to September 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from the following rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In an August 2009 rating decision the RO denied claims for service connection for radiculopathy of the left and right lower extremities, and denied a claim for a disability in excess of 20 percent for residuals of mechanical low back pain with strain status post L5-S1 transformational lumbar interbody fusion and L4-L5 foraminotomy. During the pendency of the claim the RO granted a temporary 100 percent rating under 38 C.F.R. § 4.30, effective from April 3, 2009 to the end of May 2009. That rating is not part of the current appeal. In an August 2010 rating decision the RO denied claims for service connection for hypertension; a compensable disability rating for hemorrhoids with rectal bleeding; and TDIU. The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in August 2011. In January 2012 the Board remanded the appeal for further development. In a November 2012 rating decision the RO identified the service-connected lumbar spine disability as degenerative disc disease L5-S1, and increased the rating for that disability from 20 to 40 percent effective from October 20, 2012. The RO also granted service connection for radiculopathy of the left lower extremity and assigned that disability a 10 percent rating, effective from October 20, 2012. The evaluation of the lumbar spine disability includes evaluation of any associated neurologic abnormalities during the pendency of the rating claim. These actions are reflected in the issues listed on page one of this decision. In a VA Form 9 submitted by the Veteran in February 2013, he indicated he wanted a Board hearing at a local VA office (Travel Board hearing). However, as the Veteran has already been provided an opportunity to testify regarding all issues on appeal, the Board finds that another hearing is not warranted. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. At no time during the period of the appeal has the Veteran had a diagnosis of a chronic hypertension disorder. 2. At no time during the period of the appeal has the Veteran had a diagnosis of radiculopathy of the right lower extremity. 3. Prior to October 20, 2012, the Veteran's degenerative disc disease L5-S1 was not productive of: limitation of motion of the thoracolumbar spine to 30 degrees or less of forward flexion; favorable ankylosis of the entire thoracolumbar spine; incapacitating episodes of intervertebral disc syndrome; or associated objective neurologic abnormalities other than radiculopathy of the left lower extremity. 4. From October 20, 2012, the Veteran's degenerative disc disease L5-S1 is not productive of: unfavorable ankylosis of the entire thoracolumbar spine or entire spine; incapacitating episodes of intervertebral disc syndrome; or associated objective neurologic abnormalities other than radiculopathy of the left lower extremity. 5. Prior to October 20, 2012, the Veteran had radiculopathy of the left lower extremity that is productive of mild incomplete paralysis of the sciatic nerve; and is not productive of moderate or more severe symptoms. 6. From October 20, 2012, the Veteran's radiculopathy of the left lower extremity is not productive of moderate incomplete paralysis of the sciatic nerve or more severe symptoms. 7. The Veteran's hemorrhoids with rectal bleeding, is productive of persistent bleeding and with secondary anemia; and is not productive of stricture of the rectum or anus or prolapse of the rectum. 8. The rating schedule for evaluation of lumbar spine disability and hemorrhoids is adequate for application to the Veteran's claims. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have not been met. 38 U.S.C.A. §§ 1110, 1153, 5107(b) (West 2002); 38 C.F.R. § 3.303, 3.306, 3.307, 3.309 (2012). 2. The criteria for service connection for radiculopathy of the right lower extremity have not been met. 38 U.S.C.A. §§ 1110, 1153, 5107(b) (West 2002); 38 C.F.R. § 3.303, 3.306, 3.307, 3.309, 3.310 (2012). 3. The criteria for a rating higher than 20 percent rating for degenerative disk disease L5-S1 prior to October 20, 2012, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5243 (2012). 4. The criteria for a rating higher than 40 percent rating for degenerative disk disease L5-S1 from October 20, 2012, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5243 (2012). 5. The criteria for a separate rating of 10 percent and no more for radiculopathy of the left lower extremity, for the period prior to October 20, 2012, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2012). 6. The criteria for a rating higher than 10 percent for radiculopathy of the left lower extremity, for the period from October 20, 2012, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2012). 7. The criteria for a 20 percent rating and no more for hemorrhoids with rectal bleeding, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7332, 7333, 7334, 7336 (2012). Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Letters dated in April 2009 and April 2010 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1). These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated, most recently in a December 2012 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records, VA medical treatment records, private treatment records and Social Security Administration records have been obtained; he did not identify any private/VA treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. VA examinations were conducted in July 2009, May 2010, October 2012, and November 2012. The Veteran has not argued, and the record does not reflect, that these examinations and opinions were inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection The Veteran seeks service connection for hypertension and radiculopathy of the right lower extremity. The Veteran claims service connection for radiculopathy as associated with the lumbar spine disability. Under 38 C.F.R. § 4.71a, The Spine, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2012), any associated objective neurologic abnormalities are to be separately evaluated under an appropriate diagnostic code. Under that provision, the presence and extent of any radiculopathy of the right lower extremity associated with the service-connected lumbar spine disability are to be determined and separately evaluated in the process of adjudicating the lumbar spine rating claim. However, as the Veteran perfected an appeal for service connection for radiculopathy of the right lower extremity, this claim is adjudicated on that basis. Applicable Law In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304. Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may be granted on a secondary basis for a disability that is proximately due to or is aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Some chronic diseases, including cardiovascular-renal disease to include hypertension, and organic diseases of the nervous system, are presumed by law and regulation to have been incurred in service, if they become manifest to a degree of ten percent or more within a corresponding applicable presumptive period. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Entitlement to service connection on the basis of a continuity of symptomatology after discharge under 38 C.F.R. § 3.303(b) is only available for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). A significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). A necessary element to establish entitlement to service connection is the existence of a current disability. See Degmetich v. Brown, 104 F.3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). A layperson is competent to report on the onset and continuity of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can be competent and sufficient evidence of a diagnosis or used to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Hypertension: Facts and Analysis Service treatment records do not show any high blood pressure problems or any diagnosis or finding of a hypertensive condition in service. There are numerous blood pressure readings in service treatment records; diastolic blood pressure readings ranged predominantly from 60mm to 80 mm. There was one reading of 84 and another of 86. Systolic readings ranged from 90 to 140. At his July 1992 separation examination the Veteran reported he had not had heart trouble or high or low blood pressure. On examination, his blood pressure was recorded as 139/65, and the evaluation for heart and vascular system was normal. VA treatment records show blood pressure readings of 160/78 in May 1993; 116/66 in April 1994; and 150/100 in April 1996. VA treatment records dated between January 1997 and February 1999 show a number of blood pressure readings recorded, respectively, as 116/60, 142/88, 136/81, 155/85, 147/85, 126/72, 118/66, and 148/85. VA treatment records show that the Veteran was seen in March 2009 in preparation for an April 2009 operation on his back. At that time his blood pressure was 130/80. At the time he arrived at the hospital in early April 2009, one day before his operation, his blood pressure was 157/112, 145/101, and 176/94. Post operative VA treatment records over the next few days in April 2009 show recordings of blood pressure readings of 179/96, 176/94, 158/81, 179/96, 171/92, 158/85, 166/100, 195/89, 165/99, 180/94, 190/97, 157/91, 138/82, 157/91, 138/82, 121/64, 132/85. The records reflect that the Veteran was being treated and consulted after a spinal surgery for post operative fever and hypertension. The assessment included fever and hypertension, "started on HCTZ yesterday, blood pressure under better control." An associated April 2009 VA treatment record shows that the treating physician noted the Veteran had problems with (1) fever-postoperatively with fever and chills starting the same day; surgery was two days earlier in April 2009; differential diagnosis includes benign postoperative fever (most likely), UTI, pneumonia, medication reaction (doubt); (2) hypertension-no history of hypertension as an outpatient; increased blood pressure may be due to stress, pain; observe; and (3) status post L5-S1 hemilaminectomy. The report of a November 2012 VA examination shows that the examiner noted that the Veteran was diagnosed with hypertension in 2009. The Veteran reported that he had been diagnosed with essential hypertension in 2008 after he had a lumbar spine surgery, and that he was on HCTZ for a while. He stated that his blood pressure normalized and that he has been off medication this year and his blood pressures are normal. He reported he was not taking continuous medication for hypertension. On examination, the examiner found that the Veteran did not have a history of a diastolic blood pressure elevation to predominantly 100 or more. Current blood pressure readings were 135/73, 126/68, and 132/84 as recorded on different dates in October and November 2012. The examiner recorded that the Veteran had no history of cerebral vascular accident, transient ischemic attack, hypertensive nephropathy/retinopathy. The examiner noted in his review of the claims file the following blood pressure readings taken between April 24, 2009 and October 3, 2012: 132/85, 124/68, 138/85, 125/80, 125/81, 127/82, 134/74, and 132/84. Based on review of the record and in light of these noted findings, the examiner opined that the Veteran did not have hypertension. The examiner further opined that the Veteran only had transient post-operative elevations in blood pressure, probably related to pain, noting that the Veteran was off antihypertensive medications for months pursuant to consultation with his provider, and the Veteran had no hypertension, no hypertensive sequelae, and no known hypertension in service. 38 C.F.R. § 4.104, Diagnostic Code 7101 (hypertensive vascular disease), Note 1, provides a definition of hypertension for VA purposes. Note 1 states that for VA purposes, hypertension means that the diastolic blood pressure is predominantly 90 mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm or greater with a diastolic blood pressure of less than 90 mm. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. The medical evidence shows that in April 2009, contemporaneous with back surgery, the Veteran had elevated blood pressure readings that were assessed at that time as hypertension. However, at that time the provider noted there was no history of hypertension as an outpatient, and opined that the increased blood pressure may be due to stress and pain associated with the low back problems and surgery, or fever the Veteran had at the time. After review of the complete record, the November 2012 VA examiner opined that the Veteran does not have hypertension, but rather had had transient post-operative elevations in blood pressure, probably related to (back) pain. That opinion is probative as there are no other opinions on this matter and this opinion is consistent with the remainder of the medical evidence on file showing only a temporary period of raised blood pressure readings concomitant with his April 2009 surgery and fever afterwards. Thereafter there is no evidence of any significant or chronically raised blood pressure readings. In the absence of proof of a present hypertension disability, there can be no valid claim for service connection. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Despite the assessment of hypertension in April 2009, there is no diagnosis of a chronic hypertension disorder by a medical professional, and the Veteran is not shown to be competent to diagnose such disability. Although he is competent to attest as to symptoms he has observed, a diagnosis of a hypertension disability is not a simple medical condition susceptible to lay diagnosis and, clearly, his reported symptoms have not later supported a diagnosis by a medical professional. Nor is a hypertension disability a condition for which lay observation has been found to be competent to establish the presence of disability. Charles v. Principi, 16 Vet. App. 370 (2002). As the competent medical evidence clearly shows there is no diagnosis of a hypertension disability at any time during the period of the appeal, it is unnecessary to consider whether the claim meets the other criteria for service connection. The preponderance of the evidence is against the claim for service connection for hypertension; there is no doubt to be resolved; and service connection is not warranted. 38 U.S.C.A. § 5107(b). Radiculopathy of the Right Lower Extremity: Facts and Analysis The Veteran claims that he has radiculopathy of the right lower extremity, associated with or due to, his service-connected degenerative disc disease L5-S1. During A July 2009 VA examination of the spine including neurological examination of the lower extremities, the Veteran reported he had weakness in both legs, but he had pain down the posterior aspect of the left thigh and some tingling in the left calf. On examination, the Veteran had mildly decreased sensation to light touch on the left lower extremity as compared to the right in all dermatomes. He had intact sensation to light touch in all dermatomes on the right lower extremity. He had a mildly positive straight leg raise on the left, negative on the right. After examination, the report contains an impression that the Veteran had no evidence of myelopathy or radiculopathy, although he complained of some radiation pain down the left thigh. He denied any right leg symptoms. During an October 2012 VA examination the Veteran reported complaints of bilateral lower extremity leg pain. On examination, the Veteran had normal strength in the right lower extremity with tested joints of that extremity. Reflexes at the knee and ankle were normal, and sensory examination showed sensation was normal in the right lower extremity. The straight leg test was positive on the right. The examiner concluded that the Veteran did not have right lower extremity radiculopathy. While the Veteran is competent to report symptoms such as right lower extremity pain, he does not have the requisite training to diagnose whether he has radiculopathy of the right lower extremity or whether such is associated with the lumbar spine disability. A diagnosis of radiculopathy of the right lower extremity is not a simple medical condition susceptible to lay diagnosis and, clearly, his reported symptoms have not been supported by a diagnosis by a medical professional. The opinions of the VA examiners at the two VA examinations in July 2009 and November 2012 are probative. There are no contrary opinions and the opinions are consistent with the remainder of the medical evidence on file. In the absence of proof of a present disability of radiculopathy of the right lower extremity, there can be no valid claim for service connection. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the competent medical evidence shows there is no diagnosis of radiculopathy of the right lower extremity, it is unnecessary to consider whether the claim meets the criteria for service connection. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004); see also 38 C.F.R. § 3.304(f). The preponderance of the evidence is against the claim for service connection for radiculopathy of the right lower extremity; there is no doubt to be resolved; and service connection is not warranted. 38 U.S.C.A. § 5107(b). II. Disability Ratings The Veteran claims entitlement to a higher rating for his service-connected lumbar spine disability, including a higher separate rating for associated radiculopathy of the left lower extremity from October 20, 2012. The Veteran also claims entitlement to a higher compensable rating for hemorrhoids. General Applicable Law for Evaluation of disabilities Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002). Evaluations of a service-connected disability require review of the entire medical history regarding the disability. 38 C.F.R. §§ 4.1, 4.2. If there is a question that arises as to which evaluation to apply, the higher evaluation is for application if the disability more closely approximates the criteria for that rating; otherwise, the lower rating is for assignment. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25; see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). However, the evaluation of the same disability under various diagnoses is to be avoided. See 38 C.F.R. § 4.14; Fanning v. Brown, 4 Vet. App. 225 (1993). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is competent to report complaints regarding symptoms capable of lay observation. 38 C.F.R. § 3.159(a)(2) (2012). However, these statements must be considered with the clinical evidence of record and in conjunction with the pertinent rating criteria. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). A. Lumbar Spine Disability Rating factors for a disability of the musculoskeletal system include functional loss. A 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. The functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion, weakness, or atrophy. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). 38 C.F.R. § 4.71a, Diagnostic Code 5010 provides that arthritis due to trauma that is substantiated by X-ray findings is to be rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. Disabilities of the spine are evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71a, The Spine, General Rating Formula for Diseases and Injuries of the Spine, Note (6) (2012). VA's Rating Schedule provides a single set of criteria for rating conditions of the spine, no matter which spine-related diagnostic code applies. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. 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 is not greater than 120 degrees, or muscle spasm or guarding is 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. 38 C.F.R. § 4.71a. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. Id. Unfavorable ankylosis of the entire spine warrants a 100 percent evaluation. Id. The notes listed below apply to the General Rating Formula for Diseases and Injuries of the Spine: Note (1) Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. 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. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. (See also 38 C.F.R. § 4.71a, Plate V). Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, in the case of thoracolumbar spine disability, an unfavorable ankylosis is a condition in which the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is warranted when there are incapacitating episodes having a total duration of at least one week, but less than two weeks during the past 12 months. A 20 percent rating is warranted when there are 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 warranted when there are incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 60 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. 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. If intervertebral disc syndrome is presented in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes, or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. Degenerative Disc Disease L5-S1 Rating Based on Limitation of Motion- Facts and Analysis Rating in excess of 20 percent Prior to October 20, 2012 The July 2009 VA examination conducted during the period prior to October 20, 2012, shows that the Veteran's low back disability was limited to 70 degrees of forward flexion with associated low back pain beginning at 40 degrees. With repetitions, the Veteran had painful motion in flexion also from 40 degrees. The evidence also shows that the Veteran has credibly stated that he had back pain daily he ranked at 7 on a scale of 10, with flare-up once a day with pain he ranked at 9. The July 2009 VA examination report shows that the Veteran had recently undergone a L5-S1 transforaminal lumbar interbody fusion and L4 to L5 foraminotomy and L5-S1 posterior fusion with instrumentation by VA in early April 2009. Since surgery the Veteran had not had any therapy or injection, but he takes Hydrocodone for pain. Since the surgery the Veteran had not been back to work where he worked a fork lift. The examiner expected there to be continued improvement following the surgery with improved symptoms. The examiner opined that it was possible that pain could further limit function after the Veteran is on his feet all day but the examiner stated it was not feasible to express this in terms of limitation of motion with any medical certainty. After examination, including X-ray examination, the assessment was degenerative disk disease L5-S1 status post posterior spinal fusion with instrumentation and interbody spacer L5-S1 and foraminotomy L4 to L5. Based on the foregoing, on the basis of limitation of motion, including consideration of factors under Deluca, the Veteran's low back disability does not warrant a rating in excess of 20 percent for the period prior to October 20, 2012. To warrant a disability higher than 20 percent on the basis of range of motion, the evidence must show that the Veteran's low back disability is productive of forward flexion of the thoracolumbar spine limited to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Neither the July 2009 VA examination report or other clinical records prior to October 20, 2012 contain findings productive of forward flexion of the thoracolumbar spine limited to 30 degrees or less; or of favorable ankylosis of the entire thoracolumbar spine, even with consideration of pain, weakness and other symptoms described in DeLuca. A higher rating than 20 percent is not warranted prior to October 20, 2012 based on range of motion criteria. Id. Rating in excess of 40 percent From October 20, 2012 The October 20, 2012 VA examination showed that the Veteran's low back disability was limited to 20 degrees of forward flexion with associated low back pain beginning at 20 degrees. With repetitions, the Veteran had painful motion in flexion also from 20 degrees. He did not have additional limitation in range of motion of the thoracolumbar spine following repetitive use testing. He did have functional loss/impairment consisting of less movement than normal, pain on movement, and interference with sitting, standing or weight-bearing. The Veteran also had localized tenderness or pain to palpation for joints. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine. The examiner noted that, after the April 2009 surgery, the Veteran's back developed stenotic changes at L4-L5. The Veteran did have surgical scars but none were painful, unstable, or covered a total area greater than 39 square cm. Imaging studies documented arthritis and previous L5/S1 TLIF (Transforaminal Lumbar Interbody Fusion). There were no vertebral fractures. The Veteran has stated that he had episodes of increasing low back pain and bilateral leg pain that were worse with activity and weather changes. The examiner opined that the thoracolumbar spine condition did impact on the Veteran's ability to work in that he was limited to sedentary work. Based on the foregoing, on the basis of limitation of motion, including consideration of factors under Deluca, the Veteran's low back disability does not warrant a rating in excess of 40 percent for the period from October 20, 2012. To warrant a disability higher than 40 percent on the basis of range of motion, the evidence must show that the Veteran's low back disability is productive of unfavorable ankylosis of the entire thoracolumbar spine, or of the entire spine. Neither the October 2012 VA examination report or other clinical records proximate to the October 20, 2012 examination contain findings productive of unfavorable ankylosis of the entire thoracolumbar spine, or of the entire spine, even with consideration of pain, weakness and other symptoms described in DeLuca. A higher rating than 40 percent is not warranted from October 20, 2012 based on range of motion criteria. Id. Degenerative Disc Disease Rating Based on Incapacitating Episodes There is no evidence of any incapacitating episodes of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician during the appeal period except-as noted in the July 2009 VA examination report-for two weeks immediately following the April 2009 back surgery. During that time a 100 percent temporary convalescent rating was in effect from April 3, 2009 to end of May 2009, pursuant to 38 C.F.R. § 4.30. There is no evidence of other incapacitating episodes due to intervertebral disc syndrome, and the October 2012 VA examination report noted that the Veteran did not have intervertebral disc syndrome, and had not had incapacitating episodes of intervertebral disc syndrome. That is, there is no evidence of any period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician, other than that for which the Veteran is already in receipt of a temporary 100 percent rating under 38 C.F.R. § 4.30. Thus a rating higher than 20 percent prior to October 20, 2012, or higher than 40 percent from October 20, 2012, is not warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Conclusions On the basis of limitation of motion or of incapacitating episodes criteria, the preponderance of the evidence is against the grant of a rating in excess of 20 percent prior to October 20, 2012 and against a rating in excess of 40 percent from October 20, 2012. There is no doubt to be resolved, and ratings in excess of 20 percent prior to October 20, 2012 and in excess of 40 percent from October 20, 2012, are not warranted. Objective Neurologic Abnormalities Associated With Lumbar Spine Disability General Rating Formula for Diseases and Injuries of the Spine, Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be separately evaluated under an appropriate diagnostic code. Service connection is in effect for radiculopathy of the left lower extremity, and a rating of 10 percent is in effect from October 20, 2012. That disability has been shown by findings of the October 2012 VA examination report to be associated with the Veteran's service-connected low back disability. Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. 38 C.F.R. § 4.123 (2012). The maximum rating which may be assigned for neuritis not characterized by organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate, incomplete paralysis. Id. In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. Id. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The ratings for peripheral nerves are for unilateral involvement; when bilateral, they are combined with application of the bilateral factor. Id. The use of terminology such as "mild," "moderate" and "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. 38 C.F.R. §§ 4.2, 4.6. Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve, and therefore, neuritis and neuralgia of that nerve. 38 U.S.C.A. § 4.124a. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Id. Disability ratings of 10 percent, 20 percent, and 40 percent are assignable for incomplete paralysis which is mild, moderate or moderately severe in degree, respectively. Id. A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. Id. Diagnostic Code 8620 refers to neuritis of the sciatic nerve and Diagnostic Code 8720 refers to neuralgia of the sciatic nerve. Radiculopathy of the Left Lower Extremity The evidence on file prior to October 20, 2012 shows that during the July 2009 VA examination, the Veteran complained of left lower extremity radiation of pain down the posterior left thigh. At that time he had a mildly decreased sensation to light touch on the left lower extremity as compared to the right in all dermatomes. The Veteran is competent to report such symptoms, which were later confirmed as radiculopathy of the left lower extremity at the October 2012 VA examination. Based on the clinical evidence of decreased sensation of mild severity with complaints of pain radiating down the left thigh, symptoms subsequently associated with radiculopathy of the left lower extremity, the evidence is in equipoise, and a separate 10 percent rating is warranted for the period prior to October 20, 2012 for radiculopathy of the left lower extremity associated with the service-connected degenerative disc disease L5-S1. The condition of the Veteran's radiculopathy of the left lower extremity for the period from October 20, 2012 is reflected in findings of the October 20, 2012 VA examination. During that examination neurologic examination showed normal reflexes of the left knee and ankle, and decreased sensation of the lower leg/ankle and foot/toes. Straight leg raising was positive on the left, and moderate intermittent pain. After examination the examiner made findings that the radiculopathy involved the L4/L5/S1/S2/S3 nerve roots (sciatic nerve), and was overall of mild severity. These findings overall do not reflect a condition productive of more than a mild degree of severity so as to warrant a rating higher than 10 percent for the period from October 20, 2012. There is no time during the pendency of the appeal, either before or after October 20, 2012, that there is any evidence of any associated organic changes or of any involvement that was not wholly sensory; nor is there other evidence on which to find that the radiculopathy of the left lower extremity is productive of moderate or more severe level of disability. The evidence warrants a separate 10 percent rating for radiculopathy of the left lower extremity prior to October 20, 2012. The preponderance of the evidence is against the grant of a separate rating in excess of 10 percent at any time for radiculopathy of the left lower extremity; there is no doubt to be resolved; and a rating in excess of 10 percent for radiculopathy of the left lower extremity at any time, is not warranted. Evaluation for Other Objective Neurological Abnormalities As the Veteran perfected an appeal on the claim for service connection for radiculopathy of the right lower extremity, that issue is addressed above and denied. The record does not show that the Veteran has any other neurologic abnormalities associated with the service-connected degenerative disc disease L5-S1. There is no evidence of any bladder or bowel abnormalities or other neurologic abnormalities that have been linked by competent evidence to the Veteran's service-connected low back disability. During the most recent VA examination in October 2012, the examiner specifically found that there were no other neurologic abnormalities or findings related to the low back condition such as bowel or bladder problems. There are no findings or diagnosis of neurological pathology that would allow a separate compensable evaluation. B. Hemorrhoids With Rectal Bleeding The Veteran's service-connected hemorrhoids with rectal bleeding is evaluated under criteria of the Rating Schedule for the digestive system at 38 C.F.R. § 4.114. The disability is evaluated as noncompensable under the criteria of 38 C.F.R. § 4.114, Diagnostic Code 7336. Diagnostic Code 7336 provides that assignment of zero percent rating is warranted for mild or moderate hemorrhoids, external or internal. A 10 percent rating is warranted for external or internal hemorrhoids that are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. A 20 percent rating is warranted for external or internal hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. 38 C.F.R. § 4.114, Diagnostic Code 7336 (2012). During a May 2010 VA examination the Veteran reported that he had a hemorrhoidectomy in about 1993. He reported that since then he continues to have problems of bleeding two to three weeks out of the month, with bright red bleeding every time he defecates. He was currently not on any medication. He reported that current symptoms did not include anal itching, burning, diarrhea, difficulty passing stool, pain, tenesmus, or swelling. He reported that he had persistent frequency of bleeding, and that there was a history of thrombosis but no recurrence. He reported a history of fecal incontinence with mild fecal leakage occasionally, that did not require pads. There was no history of perianal discharge. He reported he had anemia after a back surgery in October 2009, and the CBC was within normal limits. On examination, vital signs included that there had been no weight change. There was small amount of external hemorrhoid tissue present at positions of 1, 7 and 11 o'clock around the anus. There was no evidence of thrombosis, bleeding, or excessive redundant tissue; and there were no fissures, anorectal fistulas, or anal or rectal strictures present. There was no sphincter impairment and no rectal prolapse present. Colonoscopy testing showed findings of polyps in the sigmoid colon with polypectomy performed. No mention of hemorrhoids were noted in the examination. After examination, the report contains a diagnosis of hemorrhoidal skin tags, stable. The examiner commented that these had no significant effects on the Veteran's usual occupation and there was no effects on daily activities. During a November 2012 VA examination the Veteran reported that he had a hemorrhoidectomy in 1993, and that currently his treatment did not include medication. The report indicates that the Veteran reported that signs and symptoms included that he had mild or moderate external hemorrhoids, with persistent bleeding and secondary anemia. The Veteran reported having bright red bleeding at least a week every month or every other month, which was bright red on toilet paper, around stool, and in the bowl. On examination, the examiner found that the Veteran had small or moderate external hemorrhoids and no bleeding was noted at the examination. The report noted that colonoscopy in 2008 showed hyperplastic polyps, and no hemorrhoids. The report indicated that laboratory testing was performed including CBC (complete blood count), as anemia due to intestinal condition was suspected. A CBC conducted showed findings including hemoglobin: 13.4 grams per deciliter; hematocrit: 39.4 percent of total blood volume; white blood cell count: 4.92 thousands per cubic milliliter (K/uL) of blood; and platelets: 251 thousands per cubic millimeter (m/uL) of blood. Findings indicated low values for hemoglobin and hematocrit findings. The report contains an opinion by the examiner that the Veteran was anemic with a normocytic, normochromic anemia, and his iron studies, B12, folate and electrophoresis studies were normal; hence it is at least as likely as not that the anemia was secondary to bleeding from hemorrhoids. The Veteran is competent to testify as to persistent bleeding. As there is clear medical evidence of anemia secondary to bleeding from the Veteran's hemorrhoids with rectal bleeding, and after resolving any reasonable doubt in favor of the Veteran, a 20 percent rating is warranted under Diagnostic Code 7336. That rating is the maximum assignable under that code. As for other provisions under the Rating Schedule, the Veteran's hemorrhoids with rectal bleeding have never resulted in impairment of sphincter control, rectum and anus; stricture of the rectum or anus; or prolapse of the rectum, so Diagnostic Codes 7332, 7333, and 7334 are not for application. The preponderance of the evidence is against the grant of a disability rating in excess of 20 percent; there is no doubt to be resolved; and an increased rating in excess of 20 percent is not warranted. Extraschedular Disability Ratings An extraschedular rating may be provided where: (1) the schedular criteria are inadequate to describe the severity and symptoms of the claimant's disability; (2) the case presents other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating is in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Veteran has not described any unusual or exceptional features associated with his lumbar spine disability, including any associated neurological abnormalities, or his hemorrhoids. The rating criteria are adequate to evaluate these disabilities, and referral for consideration of extraschedular rating is not warranted. ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for radiculopathy of the right lower extremity is denied. Entitlement to a disability rating in excess of 20 percent for degenerative disc disease L5-S1 prior to October 20, 2012 is denied. Entitlement to a disability rating in excess of 40 percent for degenerative disc disease L5-S1 from October 20, 2012 is denied. Entitlement of a separate disability rating of 10 percent for radiculopathy of the left lower extremity, for the period prior to October 20, 2012, is granted. Entitlement to a disability rating in excess of 10 percent for radiculopathy of the left lower extremity from October 20, 2012 is denied. Entitlement to a 20 percent disability rating for hemorrhoids with rectal bleeding is granted. REMAND At the Veteran's August 2011 Travel board hearing he testified that he was not working due to his service-connected lumbar spine disability and associated radiculopathy of the left lower extremity. He said that his low back surgery did not resolve or relieve his low back problems, including shooting pain down his back and into the lower extremities, and that he ambulates with a cane. He said that the pain radiated into both legs, but mostly on the left side. In a June 2010 attending statement the physician who performed the 2009 lumbar spine surgery opined that, due to the Veteran's low back disability, the Veteran had the following limitations: The Veteran could sit, stand, or walk only intermittently for one hour; he could occasionally lift up to 10 pounds, but could never lift 11 pounds or more; he could not twist, bend or stoop; due to the pain the Veteran was psychologically unable to engage in stress situations and in interpersonal relations (marked limitations). The physician opined that the Veteran could work a total of five to six hours per day; and could return to his regular occupation only on a part time basis. In a October 2012 VA examination report, the examiner opined that the Veteran was limited to sedentary work due to the impact of his lumbar spine disability. Entitlement to a TDIU requires the presence of an impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to age or to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). The regulatory scheme for a TDIU provides both objective and subjective criteria. The objective criteria, set forth at 38 C.F.R. § 3.340(a)(2), provide for a total rating when there is a single disability or a combination of disabilities that results in a 100 percent schedular evaluation. Subjective criteria, set forth at 38 C.F.R. § 4.16(a), provide for a TDIU when, due to service-connected disability, a Veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability rated 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Service connection is in effect only for degenerative disc disease L5-S1, rated 40 percent disabling; hemorrhoids, rated 20 percent disabling pursuant to this decision; tinnitus, rated 10 percent disabling; radiculopathy of the left lower extremity, rated 10 percent disabling; and right ulna fracture, rated zero percent disabling. Thus, the Veteran does not meet the minimum combined schedular threshold requirement of 70 percent or more to be considered for a TDIU rating under 38 C.F.R. § 4.16(a). A TDIU may be awarded on an extra-schedular basis even if a Veteran fails to meet the applicable percentage standards under 38 C.F.R. § 4.16(a), if he is still unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). Marginal employment is not considered to be substantially gainful employment. Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a) (2012). The RO did not submit the Veteran's TDIU claim to the Director of Compensation and Pension for extraschedular consideration. The Board cannot award a TDIU in the first instance. This matter must be remanded so that, as the percentage requirements for consideration of 38 C.F.R. § 4.16(a) are not met, the RO can refer the matter to the Director of Compensation and Pension for extraschedular consideration. As it appears that the Veteran may be receiving ongoing VA or private treatment for his low back disability, any additional medical records pertaining to the low back and associated neurologic abnormalities must be requested. It also appears that the Veteran has submitted and perfected a claim for TDIU without completing a VA Form 21-8940. The RO must provide the Veteran with that form and instruct him to complete and return it. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a VA Form 21-8940 with instructions to complete and return the form. 2. Obtain copies of any outstanding records of pertinent VA or private medical treatment. 3. Refer the Veteran's claim to the Under Secretary for Benefits or the Director of Compensation and Pension Services for extra-schedular TDIU consideration. 4. Then, readjudicate the TDIU claim. If a benefit sought is not granted, issue a supplemental statement of the case and provide the Veteran an opportunity to respond. Then return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs