Citation Nr: 1330168 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 10-11 914 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent prior to August 5, 2011, and in excess of 40 percent thereafter, for degenerative join disease (DJD) of the lumbar spine and to include whether a separate rating is warranted for left leg radiculopathy. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. 3. Entitlement to service connection for cervical spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from September 1968 to July 1970. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from August 2009 and July 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In August 2012, the RO awarded an increased 40 percent evaluation for the DJD of the lumbar spine effective from August 5, 2011; his claim remains in controversy. See AB v. Brown, 6 Vet. App. 35 (1993) (noting that, in a claim for an increased disability rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded). The Board notes that a claim for service connection for left leg radiculopathy was certified for appeal; however, as the General Rating Formula for Diseases and Injuries of the Spine allows for the evaluation of a separate rating for any associated neurologic abnormalities (including radiculopathy), it is part and parcel of the claim for increase for the service-connected DJD of the lumbar spine and has been recharacterized accordingly as it appears on the cover page of the instant decision. See 38 C.F.R. § 4.71a, Note (1). Entitlement to a TDIU is an element of all claims for a higher initial rating. Rice v. Shinseki, 22 Vet. App. at 447. Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). The Veteran has raised a claim for TDIU. The Board notes that the RO deferred a claim for TDIU in an August 2012 rating decision and ultimately denied the claim in October 2012; however, as will be discussed in further detail below, TDIU must be considered throughout the appeal period as it pertains to the claim for increase for DJD of the lumbar spine. The claim for TDIU, as well as the claim for service connection for a cervical spine disability, 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. Prior to August 5, 2011, the service-connected DJD of the lumbar spine was not productive of: forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. 2. From August 5, 2011, the service-connected DJD of the lumbar spine has not been productive of unfavorable ankylosis of either the entire thoracolumbar spine or the entire spine. 3. Affording the Veteran all reasonable doubt, a separate 10 percent rating is warranted for no more than mild neuritis of the sciatic nerve (left leg radiculopathy) throughout the appeal period. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent prior to August 5, 2011, and in excess of 40 percent thereafter, for the service-connected DJD of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5235-5243 (2012). 2. The criteria for a separate 10 percent rating, and no higher, for left leg radiculopathy associated with the service-connected DJD of the lumbar spine have been met throughout the appeal period. 38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5235-5243, Note (1), 4.124a, Diagnostic Code 8620 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The claim arises from the Veteran's disagreement with the initial evaluation assigned following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional discussion of the duty to notify is therefore required. VA also has a duty to assist the Veteran in the development of the claim. The duty to assist is not abrogated by the granting of service connection. VA has obtained service treatment records, assisted the Veteran in obtaining evidence (VA and private medical records and lay statements), provided the Veteran VA examinations, and afforded the Veteran the opportunity to give testimony in support of his appeal, which he declined. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. II. Analysis The Board has reviewed all the evidence in the Veteran's paper claims file and virtual record (including Virtual VA and Veteran's Benefits Management System (VBMS)). Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. When considering functional impairment caused by a service-connected disorder, evaluations should be based on an assessment of the lack of usefulness, and adjudicators should consider the effects of the disabilities upon the person's ordinary activity. 38 C.F.R. § 4.10. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath, 1 Vet. App. at 594. In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). The Board also acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation at any stage since the effective date of service connection. See Fenderson v. West, 12 Vet. App 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran's statements describing his symptoms and condition are competent evidence to the extent that he can describe what he experiences. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). However, these statements must be viewed in conjunction with the objective medical evidence and the pertinent rating criteria. The Court has held that functional loss, supported by adequate pathology and evidenced by visible behavior of the veteran undertaking the motion, is recognized as resulting in disability. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.10, 4.40, 4.45. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). At the outset, the Board would note that effective on September 26, 2003, revisions were made to the VA rating schedule, which established a General Rating Formula for Diseases and Injuries of the Spine. See 68 Fed. Reg. 166, 51454-51458. (August 27, 2003). The Veteran filed his claim in 2008. Thus, only the regulations effective on September 26, 2003, apply to this claim. The service-connected DJD of the lumbar spine is rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5237 and 5242, under the General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Codes 5235 to 5243. 38 C.F.R. § 4.71a (2012). Under Diagnostic Code 5237, lumbosacral strain, and Diagnostic Code 242, degenerative arthritis of the spine, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, is assigned a 10 percent for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees or muscle spasm, guarding or localized tenderness not resulting in abnormal gait or abnormal spinal contour or ventral body fracture with loss of 50 percent or more of the height. A 20 percent rating is for disability manifested by the following: forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine not greater than 120 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. Id. While the General Rating Formula For Diseases and Injuries of the Spine does identify criteria that would afford a higher rating of 30 percent for disability involving the cervical spine (a 30 percent is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine), it does not provide for a 30 percent rating for disability associated with the thoracolumbar spine. Id An increased rating to 40 percent is warranted when a back disability is manifested by the following criteria: unfavorable ankylosis of the entire cervical spine; forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent is assigned for unfavorable ankylosis of the entire spine. Id. Historically, service connection was awarded for DJD of the lumbar spine with left leg pain in an August 2009 rating decision. An initial 10 percent evaluation was assigned effective May 2008. In an August 2012 rating decision, the RO awarded an increased 40 percent evaluation effective from August 5, 2011. The Veteran's claim remains in controversy as less than the maximum schedular rating available was assigned. AB, supra. As noted above, the service-connected DJD of the lumbar spine has been assigned a 10 percent rating prior to August 5, 2011, and 40 percent thereafter, under 38 C.F.R. § 4.71a, Diagnostic Codes 5237 and 5242, under the General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Codes 5235 to 5243, delineated above. 38 C.F.R. § 4.71a (2012). Aside from the General Rating Formula For Diseases and Injuries of the Spine, there are other provisions for rating disability of the spine when certain manifestations are present. These include incapacitating episodes and neurological problems. While there has been some radiographic evidence showing narrowing of disc space, (magnetic resonance imaging (MRI) in June 2008), there has been no evidence of incapacitating episodes of intervertebral disc syndrome (IVDS) as defined by the statute to warrant a higher rating under Diagnostic Code 5243. Id. The August 2009 VA examiner indicated the incapacitating episodes in the thoracolumbar spine area occurred one time per month. The May 2012 VA examiner found no incapacitating episodes. This does not give rise to intervertebral disc syndrome productive of incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during a 12-month period to warrant a higher rating on the criteria for IVDS. Id. The Board has also considered whether a separate disability rating would be appropriate for neurological findings appropriate to the site of the lumbar spine under the diagnostic codes pertinent to rating neurological disorders. Affording the Veteran all reasonable doubt, the Board finds that a separate 10 percent rating, and not higher, is warranted for left leg radiculopathy. 38 C.F.R. § 4.71a. As noted in the Introduction, the Veteran had filed a separate service connection claim for left leg radiculopathy; however, Note (1) allows for the evaluation of any associated neurologic abnormalities separately under the appropriate diagnostic code. As such, the claim for a separate rating for left leg radiculopathy is part and parcel of the claim for increase for DJD of the lumbar spine. There is no prejudice to the Veteran as he specifically argued for separate ratings for DJD and left leg radiculopathy in his October 2010 notice of disagreement. Throughout the appeal period, the Veteran has consistently complained of left leg radicular symptoms including, but not limited to, pain, numbness, weakness, and tingling. Though the May 2012 VA examiner found no objective evidence of radiculopathy (based on electromyography (EMG) performed in November 2009), there was intermittent radicular symptoms. The examiner specifically checked the box indicating that the Veteran had radicular pain and other signs or symptoms due to radiculopathy. The examiner found involvement of the L4, L5, S1-3 nerve roots (sciatic nerve). The left lateral femoral cutaneous nerve was also involved with quadriceps tightening. While a 10 percent rating is warranted for mild neuritis of the sciatic nerve, there has been no objective evidence of moderate neuritis to warrant a 20 percent rating. 38 C.F.R. § 4.124a. To reiterate, there has been no objective evidence of radiculopathy confirmed on EMG, but numbness was described as mild by the 2012 VA examiner. On VA examination in 2009 there was some urinary frequency; however, this appears to be an isolated complaint and there was no urinary or bowel incontinence previously or thereafter. Most recently, on VA examination in 2012 there were no associated bowel or bladder problems or pathologic reflexes. The Board has awarded a separate 10 percent rating for left leg radiculopathy associated with the DJD of the lumbar spine and now the Board shall consider the service-connected lumbar strain under the orthopedic diagnostic codes (under the General Rating Formula For Diseases and Injuries of the Spine). Having carefully considered the Veteran's claim in light of the evidence of record, as well as the applicable law and regulation, the Board finds that the currently assigned 10 percent evaluation prior to August 5, 2011, and 40 percent thereafter, is appropriate and no higher ratings are warranted at this time. 38 C.F.R. § 4.7; see Fenderson, supra. In this regard, the Veteran underwent a VA spine examination in August 2009. He presented with complaints of pain, fatigue, decreased motion, stiffness, weakness, and spasms. Pain was said to occur daily upon rising in the morning. The pain lasted 3 to 7 days and occurred 1 to 6 days per week. Flare-ups of pain were said to occur weekly and last 3 to 7 days. Pain was described as sharp and was alleviated by medication and rest. The Veteran estimated he was 100 percent incapacitated during such episodes. The examiner found abnormal kyphosis in the lower thoracic upper lumbar region. The gait was normal. There was lumbar flattening. There was no objective evidence of spasms. The Veteran had guarding on the left side but not severe enough to be responsible for abnormal gait or spinal contour. Active motion was as follows: flexion to 80 degrees; extension to 25 degrees; left lateral flexion to 20 degrees; left lateral rotation to 30 degrees; right lateral flexion to 15 degrees; and right lateral rotation to 30 degrees. There was pain with active motion and following repetitive testing; however, there were no additional limitations after three repetitions of range of motion. There was also vertebral fracture as follows; T11, 30 percent loss of height; T12, 40 percent loss of height; and L1, 40 percent loss of height. VA outpatient treatment records dated between 2007 and 2011 contain complaints of chronic low back pain. There were occasional complaints of spasm. Notably, in November 2007 despite complaints of pain, the Veteran had full range of motion and was able to ambulate without difficulty. In October 2009, the Veteran was able to squat and heel toe walk without difficulty. Straight leg raise test, among others, were negative. While there is evidence of kyphosis on VA examination in 2009, the guarding found on the left side was not severe enough to be responsible for the abnormal spinal contour. As indicated above, the Veteran's gait was normal. The complaints of spasm both on VA examination and in outpatient treatment records are provided for in the current 10 percent rating (muscle spasm, not resulting in abnormal gait or spinal contour). The maximum loss of height due to vertebral fracture was 40 percent, which is not enough to warrant even the currently assigned 10 percent rating (vertebral body fracture with loss of 50 percent or more of the height). 38 C.F.R. § 4.71a. The Board has considered the complaints of pain experienced in the Veteran's lumbar spine, as well as functional loss due to flare-ups, pain, fatigability, incoordination, pain on movement, and weakness. As noted above, pain was not productive of additional loss of function. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 206-7. There was no evidence of lack of endurance, weakness or incoordination of the lumbar spine at any time due to the service-connected lumbar strain. Id. On August 5, 2011, VA outpatient treatment records revealed that the Veteran was only able to forward flex to 30 degrees. While there was evidence of worsening of the lumbar spine condition from this date, for the reasons set forth above, there was no evidence of forward flexion 30 degrees or less prior to this date to warrant a 40 percent rating. From August 5, 2011, a rating in excess of 40 percent is also not warranted as there has been no evidence of unfavorable ankylosis of the entire thoracolumbar spine or entire spine, to include a review of VA outpatient treatment records dated between August 2011 and March 2012. On VA examination in May 2012, the Veteran had range of motion as follows: forward flexion to 30 degrees; extension to 5 degrees; right lateral flexion to 20 degrees and left to 15 degrees; and bilateral rotation to 20 degrees. There was no evidence of painful motion. The Veteran was able to perform repetitive testing. There was no additional limitation in range of motion following repetitive use testing. There was pain on movement, incoordination, disturbance of locomotion, and interference with sitting, standing, and/or weight-bearing. The Board considered the complaints of pain experienced in the Veteran's lumbar spine, as well as functional loss due to flare-ups, pain, fatigability, incoordination, pain on movement, and weakness. However, as noted above, pain was not productive of additional loss of function. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 206-7. Though there was incoordination, it did not give rise to functional loss equivalent to ankylosis to warrant a rating in excess of 40 percent. Id. In sum, a separate 10 percent rating, and no higher, is warranted for left leg radiculopathy. A rating in excess of 10 percent prior to August 5, 2011, and in excess of 40 percent thereafter, to include any additional "staged" ratings, is not warranted as the evidence does not show DJD of the lumbar spine productive of symptomatology consistent with the requisite incapacitating episodes of intervertebral disc syndrome, limited motion of the lumbosacral spine, or muscle spasm and guarding, severe enough to result in abnormal gait or spinal contour. 38 C.F.R. § 4.71a; Fenderson, supra. Should the Veteran's disability picture change in the future, he may be assigned a higher rating. See 38 C.F.R. § 4.1. Finally, the Board has considered whether referral for extraschedular consideration is indicated. The evidentiary record does not show any manifestations of, or functional impairment due to DJD of the lumbar spine and/or radiculopathy that is not encompassed by the schedular criteria. The reported complaints of pain and decreased motion are fully contemplated by the schedular criteria. The Veteran has not had any hospitalization for his lumbar spine. As there is also no objective evidence, or allegation, suggesting that the schedular criteria are inadequate, the Board finds that the schedular criteria clearly encompass the symptoms and impairment shown and referral for extraschedular consideration is not warranted. See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008). The matter of entitlement to TDIU has been raised by the record and is addressed in the Remand portion of the instant decision. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER Entitlement to an initial evaluation in excess of 10 percent prior to August 5, 2011, and in excess of 40 percent thereafter, for DJD of the lumbar spine is denied. Entitlement to a separate 10 percent rating, and no higher, for left leg radiculopathy associated with the service-connected DJD of the lumbar spine is granted subject to the controlling regulations governing monetary awards REMAND Further development is necessary prior to analysis of the Veteran's claims of service connection for a cervical spine disability and entitlement to TDIU. The Veteran should be afforded a VA examination to determine the nature and etiology of the claimed cervical spine condition. See McClendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). The Veteran claims that he injured his cervical spine during an anti-tank mine explosion. Specifically, he was driving the tank and it ran over a land mine, injuring his neck, back, and head. Service connection for TBI and DJD of the lumbar spine disability has been awarded based on this incident; its occurrence has been conceded by VA. He alternatively contends that his cervical spine disability is proximately due to, the result of, or aggravated by the service-connected DJD of the lumbar spine. The Veteran has been diagnosed with degenerative changes in the cervical spine and disc space narrowing greatest at levels C5-7. The low threshold of McClendon has been met. The examiner is asked to address the specific questions set forth in the numbered paragraphs below. The Veteran informed the May 2012 VA examiner that he stopped working in construction and farming due to back pain; consequently, the issue of entitlement to TDIU has been raised. The Board would note that the Veteran meets the schedular criteria for TDIU under 38 C.F.R. § 4.16a. Though the RO denied the claim for TDIU in October 2012, based on his failure to submit a completed application for TDIU, it is part of the current increased rating claim and must be considered throughout the appeal of such claim. Rice v. Shinseki, 22 Vet. App. at 447. Specifically, the Veteran must be afforded a VA examination to determine whether the Veteran's service-connected disabilities (DJD of the lumbar spine in particular), either singly or taken together, render him unable to secure or follow a substantially gainful occupation. Updated records of any VA treatment the Veteran has received the claimed conditions are pertinent evidence that must be secured. 38 C.F.R. § 3.159(c)(2). The RO should ensure that all due process requirements are met. The RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claims on appeal. 38 U.S.C.A. § 5103A (b) (West 2002). Accordingly, the matter is remanded for the following: 1. Secure for the record copies of the complete updated VA clinical records of all evaluations and treatment the Veteran received for his cervical spine. All requests for records and their responses must be associated with the claims folder. 2. After completion of the foregoing, schedule the Veteran for the appropriate VA examinations. The Veteran's entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, VBMS, CAPRI, and AMIE) should be available for review by the examiner. If the examiner does not have access to Virtual VA or VBMS, any relevant treatment records in Virtual VA or VBMS that are not available on CAPRI or AMIE must be printed and associated with the paper claims file. All indicated tests or studies must be completed. The examiner should describe all findings in detail. Cervical Spine All cervical spine disorders should be clearly reported. The examiners should offer an opinion in response to the following: (a) is it at least as likely as not (a 50% or higher degree of probability) that any currently diagnosed cervical spine disability was incurred during the Veteran's active military service. The examiner should be notified that the Veteran claims that he injured his neck/cervical spine when the tank he was driving in Vietnam ran over a land mine. VA has already conceded that such accident took place (service connection is in effect for TBI and DJD of the lumbar spine arising from the same incident). (b) In the alternative, is it at least as likely as not (a 50% or higher degree of probability) that any currently diagnosed cervical spine disability is proximately due to, the result of, or aggravated by (beyond the natural progression of the disease) the service-connected DJD of the lumbar spine disability TDIU The examiner is requested to provide an opinion as to whether the Veteran's service-connected disabilities (particularly the DJD of the lumbar spine), either singly or taken together, render him unable to secure or follow a substantially gainful occupation. Detailed rationale is requested for the opinion provided. If the examiner cannot provide an opinion without resorting to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. In the interest of avoiding further remand, ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. 4. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claim for service connection for a cervical spine disability, to include any pertinent evidence contained within Virtual VA or VBMS. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative with an appropriate supplemental statement of the case and afford a reasonable opportunity for response. 5. Take appropriate action to develop and adjudicate the Veteran's claim for a TDIU, which was part of his claim for increased rating for DJD of the lumbar spine. If upon completion of the above action any benefit sought remains denied, the case should be returned to the Board after compliance with requisite appellate procedures, including the issuance of a supplemental statement of the case. 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). These claims 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). ______________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs