Citation Nr: 1325741 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 05-17 446 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for the service-connected cervical spine disorder. 2. Entitlement to an initial evaluation in excess of 10 percent for the service-connected lumbar spine disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. M. Barnard, Senior Counsel INTRODUCTION The Veteran served on active duty from October 1983 to October 2003. This appeal arose before the Board of Veterans' Appeals (Board) from a November 2003 rating decision of the New Orleans Department of Veterans Affairs (VA), Regional Office (RO) which awarded service connection for cervical and lumbar spine strains, both evaluated as 10 percent disabling, effective November 1, 2003 (the day following the Veteran's discharge from active duty). In June 2006, the RO issued a decision that increased the evaluation assigned to the cervical strain to 20 percent, effective November 1, 2003 (the lumbar spine disorder was left at 10 percent disabling). In a March 2008 rating decision, the evaluation assigned to the cervical strain was increased to 30 percent, effective November 1, 2003; the evaluation assigned to the lumbar spine disorder remained unchanged. In July 2012, the Board remanded these issues to the RO. The case is again before the Board for appellate consideration. The Veteran testified before a Decision Review Officer at the RO in June 2005. A transcript of this hearing has been included in the claims folder. The issue of entitlement to an initial evaluation in excess of 10 percent for the service-connected lumbar spine disorder 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 The Veteran's cervical spine disorder is manifested by flexion to 20 degrees, extension to 10 degrees, 10 degrees of bilateral lateral flexion, and rotation to 60 degrees bilaterally, with pain on all motions, and no neurological symptoms. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 30 percent for the service-connected cervical spine disorder have not been met. 38 U.S.C.A. §§ 1155, 5102, 5013, 5103A 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.2, 4.3, 4.71a, Diagnostic Code (DC) 5237 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Stegall considerations This case was most remanded by the Board in July 2012. When a case is so remanded, the Board is obligated by law to ensure that the RO complies with its directives, "[a] remand by...the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders." In other words, where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). In the instant case, the Board had noted that additional pertinent evidence, to include years of VA treatment records and a July 2012 VA examination, had been added to the claims folder after the issuance of the last Statement of the Case (SOC) in July 2008. As a consequence, the cervical and lumbar spine claims had been remanded so that the RO could ascertain whether there were any additional treatment records, either VA or non-VA, that should be obtained and then to issue a Supplemental Statement of the Case (SSOC) to the Veteran and her representative. In August 2012, the RO sent the Veteran correspondence requesting that she provide information as to any other pertinent outstanding medical records; no response was received. In January 2013, the RO issued a SSOC to the Veteran and her representative. Therefore, the Board finds that the remand instructions have been complied with and that adjudication of the Veteran's claims may proceed. VCAA The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The notice requirements were met in this case by letters sent to the Veteran in September 2003, November 2004, May 2008, and August 2012. This correspondence advised the Veteran of the information necessary to substantiate her claims and of her and VA's respective obligations for obtaining specified types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). They also advised the Veteran of how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and she was afforded a meaningful opportunity to participate effectively in the processing of her claim, and has in fact provided additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). That was done in this case. The Board also concludes VA's duty to assist has been satisfied. The Veteran's VA and private treatment records are in the file. She has also been provided with VA examinations. As such, the Board finds the duty to assist with obtaining medical records has been satisfied. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Board notes that the Veteran was afforded VA examinations in April 2003, October 2005, April 2007, and July 2010. See 38 C.F.R. § 3.159(c)(4). These examinations were conducted by medical professionals following interview of the appellant and review of the claims file. The examiners obtained an accurate history and listened to the appellant's assertions. The examiners laid a factual foundation and reasoned basis for the conclusions that were reached. Therefore, the Board finds that the examinations are adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Applicable law and regulations Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2012); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). While the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and 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 (1994). In an appeal of an initial rating, consideration must be given to "staged" ratings, i.e., disability ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). The Board will, thus, consider entitlement to "staged ratings" in this case. The Veteran's chronic cervical strain has been evaluated under DC 5237. The general rating formula for diseases and injuries of the spine provides for the disability ratings under Diagnostic Codes 5235 to 5243, unless the disability rated under Code 5237 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, 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. Under the general rating formula for diseases and injuries of the spine, ratings related to the thoracolumbar spine are assigned as follows: A 10 percent evaluation is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or for muscle spasm, guarding, or localized tenderness not resulting in abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or combined range of motion not greater than 170 degrees; or muscle spasm or guarding severe enough to result in an abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent evaluation is warranted when forward flexion of the cervical spine is 15 degrees or less; or there is favorable ankylosis of the entire cervical spine. A 40 percent evaluation is warranted when there is unfavorable ankylosis of the entire cervical spine. Note (1) to the rating formula specifies that 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): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 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 cervical spine is 340 degrees and 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. 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, unfavorable ankylosis is a condition in which the entire cervical spine, 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 (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Intervertebral disc syndrome (preoperatively or postoperatively) may be evaluated either under 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 method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months warrants a 20 percent rating. A 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant 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. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). Factual background and analysis The Veteran was awarded service connection for her cervical spine disorder by a rating action issued in November 2003. It was noted that she had complained of a cervical spine disorder since 1991. An April 2003 VA examination had demonstrated no evidence of overt deformity. She was tender to palpation over the cervical vertebrae, and the spinal accessory and trapezius muscles bilaterally. The neck displayed full range of motion with evidence of pain on motion. Based on this evidence, her neck disability was assigned a 10 percent evaluation. The Veteran subsequently sought VA treatment. In January 2004, she felt that she was having significant pain, which was worse with prolonged standing/walking. She stated that this pain had worsened over the years. In March 2005, she reported persistent cervical/thoracic spine pain. She had limited range of motion, although she denied weakness, as well as any significant numbness or tingling. VA afforded the Veteran an examination in October 2005, during which she complained of chronic, daily neck pain that she described as shooting in nature with no symptoms consistent with radiculopathy. There were no flare-ups of the pain; rather it was the same every day. There was no numbness present. Active flexion of the neck was to 20 degrees, while passive motion was to 30 degrees. Bilateral active lateral flexion was to 20 degrees and passive motion was to 40 degrees. Active rotation was to 30 degrees bilaterally, and to 55 degrees passively. An x-ray showed no fractures or malalignment; there was mild disc space narrowing in the mid-cervical spine, which was not likely to be significant. The x-ray also noted hypertrophic changes at C4-5 that resulted in very mild neural foraminal narrowing at C4-5, mostly on the right. The Veteran was re-examined by VA in April 2007. She complained of chronic posterior cervical pain at various levels that was aggravated by movement of the neck and by lifting, carrying, pulling, pushing, and throwing with the upper extremities. She noted occasional radiation of the pain into the upper extremities, but denied any tingling, numbness, or weakness. She had 15 degrees of forward flexion, with pain at 15 degrees; 10 degrees of bilateral lateral flexion, with pain at 10 degrees; 25 degrees of bilateral rotation, with pain at 25 degrees. There was no change in these ranges of motion on repeated movement. There was no additional limitation of motion caused by pain, fatigue, weakness, or lack endurance. No postural abnormalities or fixed deformities were present. There were no neurological symptoms and intervertebral disc syndrome was not found. The diagnoses were chronic strain and degenerative disc disease (DDD). VA outpatient treatment records from 2007 and 2008 note the Veteran's continuing complaints of neck pain. The Veteran was afforded another VA examination in July 2010. She stated that she was getting progressively worse. Her pain was reportedly worse with prolonged sitting. No neurological symptoms were noted, sensory and reflex examinations were within normal limits, and there was no indication of muscle atrophy or decrease in muscle tone. Forward flexion was to 20 degrees; extension was to 10 degrees; bilateral lateral flexion was 10 degrees; and rotation was to 60 degrees bilaterally. She reported pain on all these movements. She refused to do repeat motion, stating that this would cause the pain to increase to the level that she would be unable to drive home. An x-ray was normal except for some mild scoliosis at C7. The Veteran's Virtual VA efolder contained treatment records developed between 2011 and August 2012. A notation made on September 30, 2011 included a pain assessment; she was not on any pain medication and had not experienced any chronic pain over the preceding seven days. After a careful review of the evidence of record, it is found that entitlement to an evaluation in excess of 30 percent for the service-connected cervical strain is not warranted. In order to justify the assignment of a 40 percent disability evaluation pursuant to the DC 5237 and the General rating Formula for Diseases and Injuries of the Spine, the cervical spine would have to be unfavorably ankylosed. While the Veteran does have limited motion of the cervical spine, there is no indication of unfavorable ankylosis, as defined by Note (5) (see above). Therefore, a 40 percent disability evaluation is not warranted. The Board has also considered the applicability of an evaluation for IDS. However, there is no suggestion in the record that the Veteran has ever been diagnosed with IDS of the cervical spine. In fact, the examinations conducted during this appeal have never identified IDS, finding her neurological examinations to be within normal limits. While she has referred to occasional radiation of pain, she has consistently denied, and the objective evidence has never found, the presence of tingling, numbness, or weakness related to her neck disorder. There is certainly no evidence that she has ever been prescribed bedrest by a physician for symptoms associated with IDS. The Board has also considered functional loss in accordance with VA regulations and DeLuca. 38 C.F.R. §§ 4.40, 4.45 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). While the Veteran has displayed limitation of motion, there is no indication that the limits caused by her pain are sufficient to justify a higher rating than that already assigned. While she refused to do repeated movements during the July 2010 VA examination, the examination conducted in April 2007 noted that her range of motion had not changed after repeated movement, and that there was no additional limitation caused by pain, fatigue, weakness, or lack of endurance. None of the VA outpatient treatment records developed after April 2007 contradicts the April 2007 examination findings; they do not show that pain has so limited her neck that it meets the criteria for the next higher disability evaluation. The 30 percent evaluation currently assigned is acknowledgement that her neck is limiting and does cause functional impairment. The Board finds, however, that the assigned 30 percent evaluation adequately compensates her for the current level of disability demonstrated. The Board has also carefully considered the statements and the June 2005 testimony provided by the Veteran in regard to the severity of her cervical spine disorder. The Board notes that lay persons can attest to observable symptomatology. In addition, the Veteran's statements describing her symptoms are considered to be competent evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), Layno v. Brown 6 Vet. App. 465 (1994), see also Buchanan v. Nicholson 451 F.3d 1331 (Fed. Cir. 2007). These statements, however, must be viewed in conjunction with the objective medical evidence as required by the rating criteria. The Board has considered the lay statements in determining her disability rating; however, the Board finds that the objective medical evidence has greater persuasive value in determining whether the Veteran is entitled to a higher disability rating. In this respect, the examination reports and medical evidence considered the Veteran's reported symptoms and provided the information necessary to rate the Veteran's disability in accordance with the rating criteria. In light of the overall evidence of record, the Veteran's disability does not warrant a disability rating in excess of 30 percent. In conclusion, the Board finds that Veteran's level of disability more closely approximates the criteria for a 30 percent disability rating and no higher. Therefore, the Board concludes that an evaluation in excess of 30 percent for the Veteran's service-connected cervical spine disorder must be denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extraschedular consideration The Board has also considered referral for extra-schedular consideration. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong in Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular rating for the service-connected chronic cervical strain are inadequate. A comparison between the level of severity and symptomatology of the Veteran's symptoms with the established criteria found in the general rating formula for diseases and injuries of the spine reasonably describe ratings for spine disabilities. The evidence does not reflect an exceptional or unusual disability. The Veteran's reported symptoms are encompassed and compensated by her disability rating of 30 percent. Therefore, as the first element is not met, referral to the Director of Compensation and Pension Service pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. The Board has also considered the application of Rice v. Shinseki, 22 Vet. App. 447 (2009), which found that a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) claim is part of every increased rating claim and is properly before the Board when such a claim is reasonably raised by the record. However, in the instant case, the Veteran is already in receipt of TDIU, based on the combination of all her service-connected disabilities. Therefore, the issue of TDIU need not be considered any further by the Board. ORDER Entitlement to an evaluation in excess of 30 percent for the service-connected cervical spine disability is denied. REMAND The Veteran has also requested that she be awarded a disability evaluation in excess of 10 percent for her service-connected lumbar spine strain. This disability was last examined by VA in July 2010. Since that time, she has, through her representative, asserted that this malady has gotten progressively worse. Further examination is warranted when there is an allegation of worsening since the last VA examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also 38 C.F.R. § 3.327(a) (2012). Therefore, the Board finds that another VA examination of the low back is needed prior to further adjudication of the Veteran's claim. While the case is in remand status, the RO must ascertain whether there are any other treatment records, either VA or non-VA, which should be obtained prior to the adjudication of her claim. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that she provide the names and addresses of all health-care providers, VA or non-VA, from which she has sought treatment for her lumbar spine since August 2012. She must be requested to sign and return all necessary consent forms needed to obtain any pertinent non-VA (that is, private) medical records. All efforts to obtain all identified records must be noted in the claims folder. The Veteran and her representative must be informed of any records that could not be obtained and they must be provided with an opportunity to obtain those records. 2. Schedule the Veteran for a VA orthopedic examination in order to fully evaluate the current degree of severity of the service-connected lumbar spine disorder. The entire claims folder, to include all pertinent records contained in the Veteran's Virtual VA eFolder, must be made available to the examiner to review in conjunction with the examination, and such a review must be noted in the examination report. All indicated special studies deemed necessary must be conducted. The examination must include complete range of motion of studies and must ascertain whether there are additional limitations due to pain. The examination must also note whether there is less movement than normal; more movement than normal; weakened movement; excess fatigability; or incoordination. See 38 C.F.R. § 4.45 (2012). A complete rationale for all conclusions reached must be included in the examination report. 3. The Veteran must be advised of the importance of reporting to the scheduled VA examination, pursuant to 38 C.F.R. § 3.655 (2012). A copy of the notification letter sent to the Veteran must be included in the claims folder and must reflect that it was sent to her last known address of record. If she fails to report to the scheduled examination, the claims folder must indicate whether the notification letter was returned as undeliverable. 4. Once the above-requested development has been completed, the RO must readjudicate the Veteran's claim for an increased evaluation for the service-connected lumbar strain disability. If the decision remains adverse to the Veteran, she and her representative must be provided with an appropriate SSOC and an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if otherwise in order. 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). 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). ______________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs