Citation Nr: 1327170 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 09-44 142 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in (RO) St. Louis, Missouri THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for service-connected degenerative disc disease of the lumbar spine. 2. Entitlement to an initial evaluation in excess of 10 percent for service-connected radiculopathy of the right lower extremity. 3. Entitlement to an initial evaluation in excess of 10 percent for service-connected radiculopathy of the left lower extremity. 4. Entitlement to an initial evaluation in excess of 10 percent for service-connected tinnitus. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Durham, Counsel INTRODUCTION The Veteran served on active duty from March 1974 to March 1994. These matters come to the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In that decision, the RO granted service connection for degenerative disc disease of the lumbar spine, radiculopathy of the right lower extremity, radiculopathy of the left lower extremity, and tinnitus, and assigned a 10 percent evaluation for each of those disabilities effective from August 22, 2008. The Board notes that the Veteran indicated on his November 2009 VA Form 9 Appeal that he wished to appeal the issues pertaining to his degenerative disc disease of the lumbar spine with stenosis and his bilateral lower extremity radiculopathy. He did not specifically indicate that he wished to appeal the issue pertaining to his tinnitus. In this regard, the Board has considered the recent case of Percy v. Shinseki, 23 Vet. App. 37 (2009), wherein the United States Court of Appeals for Veterans Claims (Court) found 38 U.S.C.A. § 7105 was not intended to foreclose the Board's exercise of jurisdiction over a matter in which a substantive appeal was untimely. Consequently, because the 60-day filing period is not jurisdictional, VA may waive any issue of timeliness in the filing of the substantive appeal, either explicitly or implicitly, and is not required to close an appeal for failure to file a timely substantive appeal. The Court in Percy also went on to determine that any issue concerning the timely filing of the substantive appeal in that particular case was waived by VA, due to the fact that VA seemed to have treated the Veteran's appeal as if it were timely perfected for more than 5 years before being raised by the Board in the first instance, including almost 2 years after a Board hearing was held on the claim. Therefore, as the issue of entitlement to an evaluation in excess of 10 percent for tinnitus was subsequently included in a January 2011 supplemental statement of the case (SSOC) and a February 2011 SSOC, and the Veteran's representative submitted argument with regard to this issue in the July 2013 Appellant's Brief, the Board will continue to construe this issue as being on appeal. In a February 2011 statement, the Veteran asserted that he has not been able to perform any sort of meaningful work since August 2008. Moreover, records from Social Security Administration (SSA) reflect that the Veteran's primary diagnoses are disorders of the back (discogenic and degenerative) and his secondary diagnosis is peripheral neuropathy. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for entitlement to TDIU due to service-connected disability or disabilities is part and parcel of an initial or increased rating claim when such claim is raised by the record. Therefore, as the Veteran's assertions and the evidence of record suggest that he may be unable to work due to his service-connected disabilities, and in light of the Court's holding in Rice, the Board has considered the a claim for TDIU as part of his pending increased rating claim and is listing the raised TDIU claim as an issue on appeal. In a February 2011 statement, the Veteran asserted that he uses a VA-issued knee brace on his left leg to stabilize his knee cap to prevent pain and swelling. The Veteran also asserted that he has been diagnosed with carpal tunnel syndrome of the right wrist and that this is most likely caused by the VA-prescribed cane. In a separate February 2011 statement, the Veteran discussed vertigo and atherosclerosis. As such, the issues of entitlement to service connection for a left knee condition, right wrist carpal tunnel syndrome, vertigo, and atherosclerosis have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issues of entitlement to an evaluation in excess of 10 percent for service-connected degenerative disc disease of the lumbar spine, entitlement to an evaluation in excess of 10 percent for service-connected radiculopathy of the right lower extremity, entitlement to an evaluation in excess of 10 percent for service-connected radiculopathy of the left lower extremity, and entitlement to 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. FINDING OF FACT The Veteran's service-connected tinnitus is assigned a 10 percent rating, which is the maximum rating authorized under Diagnostic Code 6260. CONCLUSION OF LAW The assignment of an evaluation in excess of 10 percent for tinnitus is not warranted. 38 U.S.C.A. § 1155; (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.321, 4.87, Diagnostic Code 6260 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The notice must be provided prior to an initial unfavorable decision 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). Nevertheless, the Veteran in this case is challenging the initial evaluation assigned following the grant of service connection for tinnitus. In Dingess, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. See also VAOPGCPREC 8-2003 (December 22, 2003). Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify has been satisfied with respect to the issue of entitlement to a higher initial evaluation for tinnitus. The Board also concludes VA's duty to assist has been satisfied. The Veteran's available service treatment records and pertinent VA and private medical records are in the file. All records identified by the Veteran as relating to this claim have been obtained, to the extent possible. The Board finds that the record contains sufficient evidence to make a decision on the claim. With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). With regard to the Veteran's claim for an increased rating for tinnitus, the Veteran was provided an audiological examination most recently in April 2009. There is no objective evidence indicating that there has been a material change in the severity of this service-connected disability since he was last examined. See 38 C.F.R. § 3.327(a) (2012). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. See VAOPGCPREC 11-95. The Board finds this examination report to be thorough and consistent with contemporaneous medical records. The examination in this case is adequate upon which to base a decision with regard to this claim. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Law and Analysis 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 claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2012). Where the Veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to "staged" ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2012). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). A 10 percent evaluation is currently assigned to the Veteran's tinnitus, effective August 22, 2008, pursuant to 38 C.F.R. § 4.84, Diagnostic Code 6260. The Veteran is seeking a higher evaluation. The Board notes that tinnitus is evaluated under Diagnostic Code 6260, which was revised effective June 13, 2003, to clarify existing VA practice that only a single 10 percent evaluation is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Diagnostic Code 6260, note 2 (2012). Prior to that date, recurrent tinnitus was also rated 10 percent disabling, which was the highest schedular rating assignable. A note following the former regulation provided: A separate evaluation for tinnitus may be combined with an evaluation under diagnostic codes 6100, 6200, 6204, or other diagnostic code, except when tinnitus supports an evaluation under one of those diagnostic codes. 38 C.F.R. § 4.87, Diagnostic Code 6260 (2002). The changes to Diagnostic Code 6260 were interpretive only; they merely codified VA's practice of assigning only a single 10 percent evaluation for tinnitus, even where the sound is perceived in both ears. In other words, VA's comments merely explained or clarified the Department's intent in providing a single 10 percent disability rating under Diagnostic Code 6260. In fact, the proposed amendment explicitly stated that no substantive change was involved. See 67 Fed. Reg. 59,033 (September 19, 2002). The Court challenged the Board's understanding of the July 2003 amendment as being merely interpretive in Smith v. Nicholson, 19 Vet. App. 63 (2005). In that case, the Court reversed a Board decision that found that, under pre-June 2003 regulations, no more than a single 10-percent rating could be provided for tinnitus, whether perceived as bilateral or unilateral. The Court held that pre-1999 and pre-June 13, 2003, versions of Diagnostic Code 6260 required that VA assign dual 10-percent ratings for "bilateral" tinnitus where it was perceived as affecting both ears. VA appealed the Court's decision in Smith to the United States Court of Appeals for the Federal Circuit (Federal Circuit). The Federal Circuit reversed the Veterans Court's decision in Smith, and affirmed VA's long-standing interpretation of Diagnostic Code 6260 as authorizing only a single 10-percent rating for tinnitus, whether perceived as unilateral or bilateral. Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). Citing Supreme Court precedent, the Federal Circuit explained that an agency's interpretation of its own regulations was entitled to substantial deference by the courts as long as that interpretation was not plainly erroneous or inconsistent with the regulations. Id. Finding that there was a lack of evidence in the record suggesting that VA's interpretation of Diagnostic Code 6260 was plainly erroneous or inconsistent with the regulations, the Federal Circuit concluded that the Court erred in not deferring to VA's interpretation. In the case currently on appeal, the Board notes that the RO assigned the Veteran a 10 percent evaluation for his service-connected tinnitus. The effective date of the award of 10 percent for tinnitus is after the date of the June 13, 2003, amendment to the rating code. Thus, a 10 percent rating is clearly the maximum rating assignable for the Veteran's tinnitus, and an increased schedular rating is not available. As clearly stated above, Diagnostic Code 6260 assigns only a single evaluation for recurrent tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Diagnostic Code 6260, note 2 (2012). Therefore, the Veteran cannot be assigned an evaluation in excess of 10 percent for both ears. Under these circumstances, the disposition of this claim is based on the law, and not the facts of the case, and the claim for an increased schedular rating must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board notes the assertions set forth in the July 2013 appellant's brief that the Veteran should be granted an increased rating due to extra-schedular consideration. As such, the Board has considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to 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 extra-schedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's service-connected tinnitus is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Indeed, the Veteran and his representative have not identified any symptoms not contemplated in the current 10 percent rating under Diagnostic Code 6260. There is also no evidence in the medical records or in the April 2009 VA examination report of an exceptional or unusual clinical picture. The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. In summary, with regard to assigning a schedular evaluation in excess of 10 percent, as noted above, the disposition of the claim for a higher schedular rating is based on the law, and not the facts of the case. As such, the claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). With regard to the possibility of assigning an extra-schedular evaluation, the Board concludes that the preponderance of the evidence is against the claim for an increased rating for the Veteran's tinnitus on an extra-schedular basis. The benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application as there is not an approximate balance of evidence. See generally Gilbert, supra; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Assignment of staged ratings has been considered and is not for application. See Fenderson, supra. ORDER Entitlement to an initial evaluation in excess of 10 percent for service-connected tinnitus is denied. REMAND After a thorough review of the Veteran's file, the Board has determined that additional development is necessary prior to the adjudication of these claims. The Board notes that the Veteran underwent a VA spine and peripheral nerve examination in November 2010, which was discussed in the January 2011 SSOC. In a statement received in February 2011 in response to this SSOC, the Veteran essentially asserted that the current severity of his lumbar spine and his radiculopathy conditions were not recorded properly in the November 2010 VA examination report. Specifically, the Veteran reported in his February 2011 statement that he has spasms quite frequently in his back and legs, despite the finding in the SSOC that the examination revealed "no spasm, atrophy, guarding, tenderness, or weakness." The Veteran further asserted that he was not questioned about fatigue or spasm, and that, when he tried to describe the muscle problems with his legs, the examining physician stated "[i]t doesn't cause that." Moreover, the Veteran expressed concern with regard to how a finding of no atrophy and normal muscle tone could be ascertained with a fully dressed subject. Additionally, the Veteran asserted that he reported numbness and tingling in his lower extremities and would have expounded further on the burning and tingling sensations he has every day in his hips, feet, and legs, if he had not been told that his back "doesn't cause that". The Court has held that VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Upon review of the November 2010 VA examination report, the Board notes that this report indicated no spasm or fatigue with regard to the lumbar spine. As the Veteran appears to be claiming that this information was incorrectly recorded at the time or, at the very least, that he experiences those symptoms now, the Board finds that the Veteran should be provided a new VA examination in order to determine the current severity and manifestations of his service-connected degenerative disc disease of the lumbar spine. Additionally, as the Veteran has asserted that he was essentially prevented from describing the true nature of the numbness and tingling in his lower extremities, the Board finds that the Veteran should also be provided a new VA examination in order to determine the current severity of his service-connected radiculopathy of the right lower and left lower extremities. Moreover, in light of the Veteran's assertions regarding his employability, the Veteran should be a provided a VA general medical examination to determine whether he is currently precluded solely by reason of any service-connected disabilities from obtaining and maintaining any form of substantial gainful employment consistent with his education and occupational experience. Further, the Veteran should be provided with a notice letter detailing the requirements for establishing entitlement to TDIU, as he has not been provided with such notice. Finally, as this case is already being remanded, the Board should take this opportunity to obtain any and all VA treatment records that have not yet been associated with the claims file. Specifically, the Board notes that the November 2010 VA examination report referred to a nerve conduction study and electromyography (EMG) study performed on June 11, 2010. While some VA treatment records from June 2010 were associated with the claims file, specific attempts to obtain copies of these test results should made as well. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with appropriate notice of VA's duties to notify and to assist with regard to substantiating a claim for entitlement to TDIU. 2. Obtain any and all relevant VA treatment records that have not yet been associated with the claims file, to specifically include results from the Veteran's June 11, 2010, nerve conduction and EMG studies. 3. The Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected degenerative disc disease of the lumbar spine. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's service-connected lumbar spine disability. The examiner should report all signs and symptoms necessary for rating the Veteran's disability under the rating criteria, to include the range of motion of the spine in degrees and the total duration of any incapacitating episodes. The examiner should indicate whether there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The examiner should also identify all neurological manifestations of the disability. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2012), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. The Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service-connected radiculopathy of the right and left lower extremities. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's service-connected radiculopathy of the lower extremities. The examiner should report all signs and symptoms necessary for evaluating the disability under the rating criteria. In particular, the examiner should indicate whether the Veteran has incomplete paralysis that is mild, moderate, moderately severe, or severe with marked atrophy. He or she should also state whether there is complete paralysis with the foot dangling and dropping, no active movement possible of the muscles below the knee, and flexion of the knee weakened or lost. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 , copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 5. The Veteran should be afforded a VA examination to determine the effect of his service-connected disabilities on his employability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the effect of the Veteran's service-connected disabilities on his ability to engage in any type of full-time employment and whether, in the examiner's opinion, the service-connected disabilities are of such severity to result in unemployability. It should be noted that consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 6. After completing these actions, the RO/AMC should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 7. When the development has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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). No further action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. See 38 C.F.R. § 3.655 (2012). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). ______________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs