Citation Nr: 1326717 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 10-30 910 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a cervical spine disability. 2. Entitlement to a total disability rating due to individual unemployability (TDIU). 3. Entitlement to a disability rating in excess of 20 percent for degenerative disc disease (DDD) of the lumbar spine with intervertebral disc syndrome with nerve root involvement at the L3, L4, and L5-S1 levels (formerly lumbosacral strain (claimed as upper, mid and lower back pain)). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from September 2001 to September 2002. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In June 2012, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to afford the Veteran a hearing before a member of the Board. The action specified in the June 2012 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran testified before the undersigned Veterans Law Judge at an April 2013 videoconference hearing, and a transcript of this hearing is of record. The Veteran has submitted additional relevant evidence since this case was last adjudicated, but the Veteran has waived RO initial review. The issues of entitlement to service connection for bladder and bowel impairment, as well as erectile dysfunction secondary to the Veteran's degenerative disc disease (DDD) of the lumbar spine with intervertebral disc syndrome with nerve root involvement at the L3, L4, and L5-S1 levels, have been raised by the record but have not been adjudicated by the RO. Accordingly, the Board does not have jurisdiction of these matters and they are referred to the RO for appropriate development. The issues of whether new and material evidence has been received to reopen the claim of entitlement to service connection for a cervical spine disability and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's intervertebral disc syndrome of the lumbar spine has caused incapacitating episodes of at least six weeks a year for the entire period on appeal. 2. The Veteran does not suffer from unfavorable ankylosis of the entire spine. CONCLUSION OF LAW The criteria for entitlement to a disability evaluation of 60 percent for degenerative disc disease (DDD) of the lumbar spine with intervertebral disc syndrome with nerve root involvement at the L3, L4, and L5-S1 levels have been met. 38 U.S.C.A. §§ 1151, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2010); 38 C.F.R., Part 4 (2012). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2012). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function, will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding the Veteran's increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 22 Vet. App. 505 (2007), and whether the veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. In Fenderson, the U.S. Court of Appeals for Veterans Claims (Court or Veterans Court) held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. In that decision, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126. Hart appears to extend Fenderson to all increased rating claims. In this case, the Veteran is seeking entitlement to a disability evaluation in excess of 20 percent for his service-connected degenerative disc disease (DDD) of the lumbar spine with intervertebral disc syndrome with nerve root involvement at the L3, L4, and L5-S1 levels. The Veteran was granted service connection for lumbosacral strain and assigned an initial 10 percent disability rating, effective September 2002. In March 2005, the Veteran filed a claim for an increased rating and in July 2005, the Veteran's disability rating was increased to 20 percent, effective March 2005. The Veteran's low back disability, previously characterized as lumbosacral strain, was recharacterized as degenerative disc disease (DDD) of the lumbar spine with intervertebral disc syndrome with nerve root involvement at the L3, L4, and L5-S1 levels. In July 2007, he filed another increased rating claim, which was denied in an August 2008 rating decision. The Veteran has appealed this denial. The Veteran's degenerative disc disease (DDD) of the lumbar spine with intervertebral disc syndrome with nerve root involvement at the L3, L4, and L5-S1 levels is currently under the General Rating Formula for Diseases and Injuries of the Spine (General Formula). 38 C.F.R. § 4.71a (2012). Under the General Formula, diseases and injuries to the spine are to be evaluated under Diagnostic Codes 5235 to 5243 as follows: 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; Unfavorable ankylosis of the entire spine ............................................................. 100 Unfavorable ankylosis of the entire thoracolumbar spine ...................................... 50 Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine ................................................................................................ 40 Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine ........................................................................................... 30 Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis ...................................... 20 Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height .................................................................................. 10 Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, 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. Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes With incapacitating episodes having a total duration of at least six weeks during the past 12 months ........................................................................................................ 60 With incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months ............................................................... 40 With incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months ............................................................. 20 With incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months ............................................................. 10 Note (1): For purposes of evaluations under 5293, 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. Note (2): If intervertebral disc syndrome is present 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. 38 C.F.R. § 4.71a (2012). Additionally, under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology, and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, painful movement, swelling, deformity, or disuse atrophy. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). In support of his claim, the Veteran has submitted private medical records, including statements from Dr. A.M., Dr. M.M., and D.P., APRN. In a January 2008 letter, D.P. of Pain Management and Rehabilitation reported that the Veteran had exacerbations of his back condition that necessitated occasional bed rest which the Veteran estimated totaled approximately twelve weeks per year. She explained that she had instructed the Veteran that occasional bed rest was acceptable when his medications and other modalities of treatment did not provide adequate relief of his symptoms. In a June 2010 letter, Dr. M.M. of Pain Management and Rehabilitation reported that she had been treating the Veteran on a monthly basis since 2005 for a number of medical conditions, including the Veteran's service-connected degenerative disc disease (DDD) of the lumbar spine with nerve root involvement and lumbar radiculopathy. She noted that the Veteran suffered incapacitating episodes of pain and increased fatigability due to his back condition and had been prescribed bed rest when necessary of twelve to twenty four weeks per year. In April 2013, Dr. A.M. of Piedmont Spine and Neurological Group submitted a copy of a prescription for bed rest of twelve or more weeks per year. At his April 2013 hearing, the Veteran testified that he had been prescribed twelve to twenty four weeks of bed rest since 2004. The Veteran's June 2008 and August 2008 VA examinations do not address the number of incapacitating episodes due to the Veteran's lumbar spine disability, only his cervical spine. They do show that the Veteran had full range of motion of the thoracolumbar spine, even following repetitive testing, although the Veteran complained of painful motion. A July 2007 EMG showed diminished nerve function in his bilateral lower extremities from L-2 to S-1, with the level of impairment ranging from mild to very severe. Based on evidence provided by several of the Veteran's treating physicians, as well as the Veteran's own testimony showing that he has been prescribed at least twelve weeks of bed rest a year since at least 2005, the Board finds that the Veteran is entitled to a disability rating of 60 percent for the entire period on appeal under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, which assigns a 60 percent disability rating for incapacitating episodes of at least six weeks total duration in a twelve month period. A 60 percent rating is the highest that can be assigned under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The only way a disability rating in excess of 60 percent could be assigned under the General Formula is if the Veteran suffers from ankylosis of the entire spine. There is no evidence in the June 2008 or August 2008 examination reports, VA treatment records, or private medical records that the Veteran suffers from ankylosis of the entire spine and the Veteran has never claimed otherwise. Accordingly, a 100 percent schedular rating cannot be assigned under the General Formula. Additionally, as the Veteran's degenerative disc disease (DDD) of the lumbar spine with intervertebral disc syndrome with nerve root involvement at the L3, L4, and L5-S1 levels are being rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, rather than the General Formula, separate disability ratings cannot be assigned for radiculopathy of the lower extremities without pyramiding. The Board has also considered the Veteran's subjective complaints of bladder and bowel impairment, as well as erectile dysfunction, but is unable to determine from the available record whether the Veteran has actually been diagnosed with a bladder or bowel condition or erectile dysfunction secondary to his service-connected degenerative disc disease of the lumbar spine for which a compensable disability rating could be assigned. Accordingly, the Board has referred these issues to the RO for appropriate development. Finally, the Board has considered whether the Veteran's disability warrants referral for extraschedular consideration. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2012). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, it does not appear that the Veteran has an "exceptional or unusual" disability; he merely disagrees with the assigned evaluation for his level of impairment. In other words, he does not have any symptoms from his service-connected disorder that are unusual or are different from those contemplated by the schedular criteria. To the extent the Veteran's disability interferes with his ability to maintain gainful employment, this is addressed by his claim for TDIU. The available schedular evaluations for that service-connected disability are adequate to address the Veteran's complaints of pain and radiculopathy. Referral for extraschedular consideration is not warranted. See VAOPGCPREC 6-96. Further inquiry into extraschedular consideration is not required. See Thun, supra. In conclusion, entitlement to a 60 percent disability for the Veteran's service-connected degenerative disc disease (DDD) of the lumbar spine with intervertebral disc syndrome with nerve root involvement at the L3, L4, and L5-S1 levels is granted for the period on appeal. However, a higher disability rating cannot be assigned. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Veterans Court held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Additionally, in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), the Veterans Court clarified VA's notice obligations in increased rating claims. The Federal Circuit recently reversed the Veterans Court's decision in Vazquez-Flores, finding that VA is not required to tailor § 5103(a) notice to individual Veterans or to notify them that they may present evidence showing the effect that worsening of a service-connected disability has on their employment and daily life for proper claims adjudication. For an increased rating claim, section § 5103(a) now requires that the Secretary notify claimants generally that, to substantiate a claim, they must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd sub. nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (holding that notice specific to individual Veterans is no longer required in increased compensation claims). Here, the VCAA duty to notify was satisfied by a letter sent to the Veteran in November 2007. This letter informed the Veteran of what evidence was required to substantiate his claim, as well as of VA and the Veteran's respective duties for obtaining evidence. The Veteran was also informed of how VA assigns disability ratings and effective dates. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records, as well as VA treatment records and records from the Social Security Administration (SSA). The Veteran submitted private medical records and was provided an opportunity to set forth his contentions during the April 2013 hearing before the undersigned Veterans Law Judge. In this regard, the Board notes that in Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010), the Court held that there are two duties imposed by 38 C.F.R. § 3.103(c)(2), (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked are not impacted by the Veteran's receipt of letter that complies with VA's duty to notify. In this case, during the Board hearing, testimony was elicited regarding the elements that were lacking to substantiate the claim and the Veteran and his representative demonstrated actual knowledge of this information. The representative's questions specifically elicited responses designed to show that the Veteran's understood the criteria necessary to substantiate his claim. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (explaining that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim). Further, a review of the record also reveals no assertion, by the Veteran or his representative, that VA or the undersigned failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any other prejudice in the conduct of the Board hearing. Accordingly, the Veteran is not shown to be prejudiced on this basis. The appellant was afforded VA medical examination in June 2008 and August 2008. These examinations were based upon review of the claims folder, and thoroughly discuss the nature and severity of the Veteran's disability as well as the functional impairments resulting therefrom. The examination reports are adequate for rating purposes. See 38 C.F.R. § 4.2. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to a disability evaluation of 60 percent for degenerative disc disease (DDD) of the lumbar spine with intervertebral disc syndrome with nerve root involvement at the L3, L4, and L5-S1 levels is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND The Veteran is seeking entitlement to a cervical spine disability, as well as entitlement to a TDIU. Entitlement to service connection for a cervical spine disability was most recently denied in August 2008 and November 2008 RO decisions. Entitlement to a TDIU was denied in an August 2008 RO decision. In December 2008, the Veteran submitted a timely notice of disagreement with these decisions. While the RO appears to have found the Veteran's intent to appeal ambiguous, the Board finds that considering the statement as a whole, the Veteran clearly indicated that he disagreed with the denial of a TDIU and service connection for a cervical spine disability and wanted to pursue an appeal of these issues. As the RO never issued a statement of the case with regard to these issues, the Board is required to remand the issues to the RO for issuance of a statement of the case. See Manlicon v. West, 12 Vet. App. 238 (1999). After the RO issues a statement of the case, then if, and only if, the Veteran timely files a VA Form 9, Substantive Appeal, or other correspondence containing the necessary information, these issues may be returned to the Board for adjudication. Accordingly, the case is REMANDED for the following action: After undertaking any indicated development to include obtaining current treatment records and/or scheduling the Veteran for a VA examination, the RO should issue a statement of the case for the issues of whether new and material evidence has been received to reopen the claim of entitlement to service connection for a cervical spine disability, and entitlement to a TDIU. See Manlicon v. West, 12 Vet. App. 238 (1999). After the RO issues a statement of the case, then if, and only if, the Veteran timely files a VA Form 9, Substantive Appeal, or other correspondence containing the necessary information, these issues may be returned to the Board for adjudication. The appellant has the right to submit additional evidence and argument on the 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). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs