Citation Nr: 1326067 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 10-02 594 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a rating in excess of 20 percent for a chronic lumbar strain with mild osteoarthritic changes at L5-S1. 2. Entitlement to a rating in excess of 30 percent for migraine headaches. 3. Entitlement to service connection for a cervical spine disorder, to include as secondary to service-connected chronic lumbar strain with mild osteoarthritic changes at L5-S1 and/or service-connected migraine headaches. REPRESENTATION Veteran represented by: Virginia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from June 1990 to July 1990, from January 1999 to May 1999 and from January 2003 to January 2004. She also had various periods of service in the National Guard. This appeal to the Board of Veterans' Appeals (Board) arose from an April 2009 rating decision in which the RO denied the Veteran's claim for an increased rating for migraine headaches. In May 2009, the Veteran filed a notice of disagreement (NOD) with the assigned disability rating. A statement of the case (SOC) was issued in January 2010 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later that month. In addition, the Veteran appeals from a February 2012 rating decision in which the RO denied her claim for an increased rating for a lumbar spine disorder as well as her claim for service connection for a cervical spine disorder. In February 2012, the Veteran filed a NOD with the assigned disability rating as well as the denial of her claim for service connection. A SOC was issued in April 2012 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in May 2012. In April 2013, the Veteran testified before the undersigned at the RO in a Videoconference hearing. A hearing transcript has been associated with the claims file. A review of the Virtual VA claims processing system reveals VA treatment records dated through May 2012; such records were considered by the RO in the May 2012 supplemental SOC (SSOC). The issues of entitlement to a rating in excess of 20 percent for chronic lumbar strain with mild osteoarthritic changes at L5-S1 and entitlement to service connection for a cervical spine disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDING OF FACT The Veteran's migraine headaches are productive of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for a higher rating of 50 percent for migraine headaches are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. A February 2009 pre-rating letter provided pertinent notice to the Veteran in connection with her claim for an increased rating for migraine headaches. This letter indicated what information and evidence was needed to substantiate the claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence would be obtained by VA. This letter provided notice of the manner in which VA assigns initial ratings and effective dates, consistent with the holding in Dingess/Hartman. In a claim for an increased rating, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). A June 2009 letter notified the Veteran that medical or lay evidence could be submitted to substantiate her claim for an increased rating for migraine headaches and provided specific examples. This letter stated that such evidence should discuss her disability symptoms from people who have witnessed how they affected her as well as notifying her that she may submit statements from her employers. The remaining elements of Vazquez notice were provided in this June 2009 letter. The timing deficiency with regard to this June 2009 letter was cured by the readjudication of the claim for an increased rating for migraine headaches in the January 2010 SSOC. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided. Pertinent medical evidence associated with the claims file includes the Veteran's VA outpatient records, various private treatment records and the reports of VA examinations. Also of record and considered in connection with the appeals are various written statements provided by the Veteran and her representative on her behalf. The Board also finds that no additional RO action to further develop the record in connection with the claims for higher rating, prior to appellate consideration, is required. The Board notes the Veteran's statements that she has sought treatment for her disabilities outside of VA. However, the Veteran has not identified the provider of such treatments nor has she completed an appropriate authorization form which would allow VA to obtain such records. VA is only obligated to obtain records that are adequately identified and for which necessary releases have been submitted. See 38 C.F.R. § 3.159(c)(1). The Veteran was also afforded VA examinations in conjunction with the claim on appeal, including a VA examination conducted in May 2011, to determine the severity of her migraine headaches. Neither the Veteran nor her representative has alleged that this VA examination is inadequate for rating purposes. Moreover, the Board finds that the examination is adequate in order to evaluate the Veteran's service-connected migraine headaches as it includes interviews with the Veteran, a review of the record, and full examination, addressing the relevant rating criteria. Moreover, neither the Veteran nor her representative has alleged that her migraine headaches have worsened in severity since the VA examination. Rather, with respect to the migraine headaches, they argue that the evidence reveals that the Veteran's disability has been more severe than the currently assigned rating for the duration of the appeal period. Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (the passage of time alone, without an allegation of worsening, does not warrant a new examination). Therefore, the Board finds that the examination of record is adequate to adjudicate the Veteran's claim for an increased rating and no further examination is necessary. Additionally, in March 2013, the Veteran was provided an opportunity to set forth her contentions during the hearing before the undersigned. In Bryant v. Shinseki, the Court held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the March 2013 hearing, the undersigned enumerated the issues on appeal and noted that the evidence necessary to substantiate the claim was evidence showing entitlement to the next higher rating. Also, information was solicited regarding the Veteran's current migraine symptoms. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. Id. at 497. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate her claim, the avenues through which she might obtain such evidence, and the allocation of responsibilities between herself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with either claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Higher Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of 'staged rating' (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). A. Migraine Headaches The Veteran contends that she is entitled to a higher rating as she experienced daily headaches and that her prescribed medications were not effective in treating her symptoms. Historically, the Veteran's migraine headaches have been assigned a rating under the diagnostic codes for migraine headaches. Migraine headaches are evaluated under Diagnostic Code 8100. Under that diagnostic code, a 30 percent rating is assigned when a veteran has characteristic prostrating attacks occurring on an average once a month over the last several months. A maximum, 50 percent rating is assigned for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The rating criteria do not define "prostrating;" nor has the Court. Cf. Fenderson, supra (in which the Court quotes Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack). By way of reference, the Board notes that according to WEBSTER'S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION (1986), p. 1080, "prostration" is defined as "utter physical exhaustion or helplessness." A very similar definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), in which "prostration" is defined as "extreme exhaustion or powerlessness." Further it has been held that nothing in Diagnostic Code 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 446 (2004). In this regard it was explained by the Court that if "economic inadaptability" were read to import unemployability, the appellant, should he or she meet the economic-inadaptability criterion, would then be eligible for a rating of total disability based on individual unemployability resulting from a service-connected disability (TDIU) rather than just a 50 percent rating. Id., citing 38 C.F.R. § 4.16 (2012). In the Pierce case, the Court discussed the notion that consideration must also be given as to whether the disability is capable of producing severe economic inadaptability, regardless of whether the condition is actually causing such inadaptability. See Pierce, supra at 446. In this regard, the decision mentions that, VA conceded that the words, "productive of" could be read to mean either "producing" or "capable of producing." Id. at 446, 446-447. The relevant evidence in the record includes the Veteran's VA records, as well as reports of the VA examination conducted in May 2011. A May 2009 private neurological summary reflected the Veteran's reports of daily headaches, that she woke with a mild or dull headache which was aching and that her headaches worsened by mid-day. An impression of headaches most consistent with tension headaches was made. In a July 2009 statement, the Veteran wrote that she missed five to six days of work a month due to her headaches but was not sure if her employer would continue to allow this to occur. In a January 2010 substantive appeal, the Veteran wrote that she could not afford to miss work due to her headaches as took off work for her medical appointments and would be unemployed if she did so. A report of a May 2011 VA examination reflected the Veteran's complaints of daily low-grade headaches with periodic flares which usually prompted her to use narcotic analgesics and/or emergency visits. Her last flare-up occurred about two weeks ago and was improved with the use of narcotics taken at the early onset of her headache. Flare-ups were precipitated by foul weather, bright lights, loud noises and certain odors and were alleviated with the immediate intake of analgesics, the religious daily intake of maintenance medications and isolation supine in a dark quiet room. She reported losing at least five to six days of work per month due to her headaches, despite the allowance for her to do some work at home. A diagnosis of migraine headaches was made following a physical examination and a review of the Veteran's claims file. During an April 2013 hearing, the Veteran testified that she lost seven or eight days of work per month due to her migraine symptoms and that she was also able to work from home. She used various medications to treat, and to attempt to prevent, her symptoms. VA treatment records reflected the Veteran's reports of "bad" headaches which occurred two to three times per month in July 2010 and two times per month in November 2011, which was noted to be reduced from four such headaches per month. She reported headaches that occurred two to three times per week, but did not require emergency room visits, in February 2009. An undated internet article submitted by the Veteran addressed the myths and realities associated with migraine headaches. Significantly, the use of the conjunctive "and" in a statutory provision means that all of the conditions listed in the provision must be met. See Melson v. Derwinski, 1 Vet. App. 334 (1991); Johnson v. Brown, 7 Vet. App. 95 (1994) (holding that only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). Here, because of the successive nature of the rating criteria, such that the evaluation for each higher disability rating includes the criteria of each lower disability rating (at least what could be considered most of them), each of the criteria listed in the 50 percent rating must be met in order to warrant such a rating. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). In order to be entitled to a 50 percent rating, the evidence must show that the Veteran has headaches of very frequent completely prostrating intensity, as well as prolonged attacks productive of severe economic inadaptability. Having evaluated both the lay and clinical evidence presented for the record, the Board concludes that the criteria for the assignment of a 50 percent rating have been met. The evidence indicates that the Veteran has prostrating headaches occurring between two and four times a month. Accordingly, the element of very frequent completely prostrating and prolonged attacks is established. The Veteran's headaches have also required the use of significant amounts of leave from work, as the Veteran wrote in her January 2010 substantive appeal that she took leave every week for her doctor's appointments. The Veteran herself has estimated that she misses five to eight days of work every month due to headache symptoms despite her employer's allowance for her to do some work at home. She has been granted some accommodation for her disability, including being able to work from home on certain days and using a larger computer monitor. Thus, the Board finds that the headache disorder is also productive of severe economic inadaptability. As such, both elements are met under Diagnostic Code 8100. Accordingly, the Veteran is entitled to a higher rating of 50 percent. The Board notes that a rating of 50 percent is the maximum rating available under Diagnostic Code 8100. B. Other Considerations The above-noted determinations are based on consideration of pertinent provisions of VA's rating schedule. Additionally, the Board finds that at no pertinent point has the disability under consideration been shown to be so exceptional or unusual as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (cited in the January 2010 SOC and in the April 2012 SSOC). The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, supra. In this case, the Board finds that the applicable schedular criteria are adequate to rate the disability under consideration at all points pertinent to this appeal. The rating schedule fully contemplates the described symptomatology, and provides for ratings higher than that assigned based on more significant functional impairment. The Veteran primarily complains of pain. The Veteran has not described any unusual or exceptional features of her headache disability. Significantly, there is no medical indication or argument that the applicable criteria are otherwise inadequate to rate the disability. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). As a final point, the Board notes that, although a claim for a total disability rating based on individual unemployability (TDIU) may be raised in the record as a component of a claim for higher rating (see e.g., Rice v. Shinseki, 22 Vet. App. 447 (2009)), here, there is no evidence or argument that the Veteran's migraine headaches render her unemployable as she has reported working as an investigator during the course of the appeal. As such, a claim for a TDIU due to migraine headaches has not reasonably been raised, and need not be addressed. ORDER A higher rating of 50 percent for migraine headaches is granted, subject to VA laws and regulations pertaining to the payment of monetary benefits. REMAND With respect to the remaining issues, the Board finds that a remand is necessary in order to ensure that there is a complete record upon which to decide the Veteran's claims so that she is afforded every possible consideration. A. Lumbar Spine The Veteran contends that she is entitled to a higher rating for her lumbar spine disorder due to the severity of the pain she experiences. The Veteran last underwent a VA examination in January 2011. The examiner noted a May 2008 MRI scan finding of an intraosseous hemangioma in the T11 vertebral body was an incidental finding of no clinical value. In addition, the examiner noted that the Veteran's chronic back pain was out of proportion to the "negative" MRI scan, which was considered the "gold standard," and the X-rays were normal without any noted structural problems. The examiner added, however, that there was no evidence of malingering found. Thereafter, a June 2011 private lumbar MRI scan revealed a shallow right paracentral disc protrusion at L4-L5 with a possible mass effect on the traversing right L5 foot without a definite left-sided disc herniation. An April 2012 private neurosurgery treatment note showed a provider described that the June 2011 MRI scan revealed a L4-5 disc herniation that was slightly paracentral to the right. A November 2012 MRI report noted an impression of right paramedian disc protrusion with annular tear and impingement on the right nerve root within the lateral recess at L4-L5 and minimal right nerve root impingement within the lateral recess at L5-S1 due to mild disc bulging. The Board finds that in light of the foregoing changes noted since the January 2011 VA examination, the Veteran should be afforded another VA examination to ensure that there is sufficient evidence to rate the disability for the entire appeal period. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). B. Cervical Spine Disorder VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Duenas v. Principi, 18 Vet. App. 512 (2004); Robinette v. Brown, 8 Vet. App. 69 (1995); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). For below noted reasons, the Board finds that another opinion is necessary in order to determine the nature and etiology of the Veteran's claimed cervical spine disorder. The Veteran has alleged that service connection for her cervical spine disorder was warranted on a direct basis due to weight she carried on her back during service, as well as on a secondary basis due to her service-connected lumbar spine and migraine headache disorders. A VA examination was conducted in February 2011. The examiner opined that the Veteran's cervical spine disorder was "less likely as not caused by, a result of, or secondary" to the Veteran's service-connected lumbar spine disorder. The basis for the negative opinion was in part due to the "negative" 2008 MRI findings. As noted above, updated 2011 and 2012 MRIs of the lumbar spine show additional findings. Thus, the Board finds that the examiner should be asked whether any change in the opinion provided is warranted given these new MRI findings. Also, the examiner did not address the aggravation component of the Veteran's secondary service connection claim, which must be considered. Also, the examiner must address the Veteran's direct service connection theory of entitlement. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an in-person orthopedic/spine and neurological examination to determine the severity of her low back disability. The examiner should identify and completely describe all current orthopedic and neurological symptomatology. The Veteran's claims folder must be reviewed by the examiner. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examination report must include ranges of motion, with notations as to the degree of motion at which the Veteran experiences pain. The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. If not feasible to do so to any degree of medical certainty, then the examiner should so indicate. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups (if the Veteran describes flare-ups). The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If not feasible to do so to any degree of medical certainty, then the examiner should so indicate. 2. Return the claims file and examination report to the February 2011 VA examiner for an addendum opinion. The examiner is asked to furnish an opinion with respect to the following questions: (a) [SECONDARY CAUSATION] In light of additional findings noted on MRI in June 2011 and November 2012 since the February 2011 VA examination, is the examiner still of the opinion that the Veteran's cervical spine strain is less likely as not caused by or a result of or secondary to her current diagnosis of chronic lumbar strain or lumbar spine injury during active duty? (b) [SECONDARY CAUSATION] Is it at least as likely as not (50 percent or greater probability) that the Veteran's cervical spine disorder was caused by the service-connected migraine headache disability? (c) [SECONDARY AGGRAVATION] Is it at least as likely as not (50 percent or greater probability) that the Veteran's cervical spine disorder was aggravated by the service-connected low back disability and/or migraine headache disability. If such aggravation is found, the examiner should determine: (1) the baseline manifestations of the Veteran's cervical spine disorder absent the effect of aggravation; and (2) the increased manifestations that are proximately due to the service-connected low back disability and/or migraine headache disability. (d) [DIRECT SERVICE CONNECTION] Is it at least as likely as not (50 percent or greater probability) that the Veteran's cervical spine disorder is related to the Veteran's military service, including any lifting or carrying of weight? A complete rationale should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. 3. If any benefit sought on appeal remains denied, the RO/AMC should issue a supplemental statement of the case, before the claims file is returned to the Board, if otherwise in order. The Veteran 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). ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs