Citation Nr: 1333565 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 07-39 004 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial schedular rating higher than 20 percent for residuals of a low back injury. 2. Entitlement to an initial compensable schedular rating for right lower extremity radiculopathy from June 12, 2003 to December 18, 2005. 3. Entitlement to an initial schedular rating higher than 10 percent for right lower extremity radiculopathy from June 12, 2003. 4. Entitlement to an extra-schedular rating for residuals of low back injury and right lower extremity radiculopathy. 5. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran had active service from June 1982 to May 1985. This case initially came before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In December 2005, the RO (implementing a Board decision) granted entitlement to service connection for low back injury residuals and assigned a 10 percent rating effective the June 12, 2003 date of claim. In May 2006, the RO increased the rating for the low back injury residuals to 20 percent, also effective June 12, 2003 and granted a separate 10 percent rating for right lower extremity radiculopathy, effective December 19, 2005. The Veteran timely appealed the assigned initial ratings, and the issues have been listed as on the title page for the reasons discussed below. The Veteran appeared at a Travel Board hearing at the RO before the undersigned in July 2010. A transcript of the hearing is of record. In August 2011, the Board remanded the case to the RO, via the Appeals Management Center (AMC). For the reasons stated below, the RO/AMC complied with the Board's remand instructions. The issues of entitlement to an extra-schedular rating for low back injury residuals to include right lower extremity radiculopathy 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. Symptoms of low back injury residuals have not at any time during the appeal period more nearly approximated flexion of the thoracolumbar spine limited to 30 degrees or less, ankylosis, or incapacitating episodes as defined in the applicable regulation. 2. The evidence is at least evenly balanced as to whether right lower extremity radiculopathy existed from the June 12, 2003 date of claim for entitlement to service connection for back and leg disability. 3. The evidence is at least evenly balanced as to whether symptoms of the Veteran's right lower extremity radiculopathy have more nearly approximated moderate, rather than mild, incomplete paralysis of the sciatic nerve throughout the appeal period beginning June 12, 2003. CONCLUSIONS OF LAW 1. The criteria for an initial schedular rating higher than 20 percent for low back injury residuals have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5243 (2013). 2. The criteria for an initial rating of 20 percent, but no higher, have been met for right lower extremity radiculopathy from June 12, 2003. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.120, 4.24a, DC 8620 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Clams Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2013). As noted above, the claims for higher ratings for low back injury residuals and right lower extremity radiculopathy arise from the Veteran's disagreement with ratings assigned in connection with the grant of service connection for these disabilities. The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007); VAOPGCPREC 8-2003 (2003). The Court has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as a disability rating or effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105 (West 2002). Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). Consequently, further discussion of the VCAA's notification requirements with regard to these claims is unnecessary. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records (STRs) and all of the identified post-service treatment records, as well as the records of the Social Security Administration's (SSA's) disability determination. The Veteran indicated during the Board hearing that all of his treatment was at a VA Medical Center (VAMC) and, pursuant to the Board's August 2011 remand instructions, the RO/AMC obtained the outstanding treatment records from the VAMC. In addition, the veteran was afforded multiple VA examinations as to the severity of his low back injury residuals and right lower extremity radiculopathy. The most recent examinations were conducted in September and December 2011, pursuant to the Board's August 2011 remand instructions. For the reasons indicated below, these examinations were adequate and the RO/AMC therefore complied with the Board's remand instructions in this regard as well. In addition, as demonstrated in the discussion below, the other VA examinations were adequate as well. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claims for higher ratings for low back injury residuals and right lower extremity radiculopathy are thus ready to be considered on the merits. Analysis Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999). Here, however, as shown below, the evidence warrants uniform 20 percent schedular ratings for both the low back injury residuals and right lower extremity radiculopathy. Low Back Injury Residuals The Veteran's low back injury residuals are rated under 38 C.F.R. § 4.71a, DC 5243, applicable to intervertebral disc syndrome (IVDS). All diseases and injuries of the spine other than IVD are to be evaluated under the general rating formula for diseases and injuries of the spine (general rating formula). IVDS is to be rated either under the general rating formula or under the Formula for Rating IVDS based on incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Note 1 to the Formula for Rating IVDS defines an incapacitating as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. During the Board hearing, the Veteran specifically indicated that, although he could not get out of bed some days due to his back symptoms, he had not been prescribed bed rest. Hearing Transcript, at 8. The medical records and VA examination records similarly do not indicate bed rest prescribed by a physician. The formula for rating IVDS is therefore inapplicable in this case. Under the general rating formula, a 40 percent rating is warranted where forward flexion of the thoracolumbar spine 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. The only higher schedular ratings under the general rating formula are 50 percent for unfavorable ankylosis of the entire thoracolumbar spine and 100 percent rating is warranted for ankylosis of the entire spine. In addition, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. The evidence reflects that limitation of thoracolumbar spine flexion has not more nearly approximated 30 degrees or less at any time during the appeal period, even considering pain and the other DeLuca factors. On the December 2005 VA examination, flexion was 0 to 90 degrees with pain at 90 degrees. The examiner noted that after repetitive use or during flare-ups, the Veteran had pain, fatigue, weakness, lack of endurance, and incoordination, with the major functional impact being from pain. The examiner did not, however, indicate the degree to which any of the DeLuca factors caused additional limitation of motion. On the March 2009 VA examination, flexion was again to 90 degrees with pain again beginning at 90 degrees. The examiner indicated that joint function was additionally limited after repetitive use by pain, fatigue, weakness, and lack of endurance, with pain having the major functional impact. There was no additional limitation in degree. On the September 2011 VA examination, flexion was to 70 degrees with pain in the last 20 degrees. There was no further loss of motion or increased pain with repetition. The examiner indicated that the mild limitation of motion appeared to be caused predominantly by pain, and he did not determine that the Veteran had any excessive fatigability or incoordination of the of the thoracolumbar spine. He indicated that flare-ups impacted the function of the thoracolumbar spine. The Veteran gave a history of flare-ups occurring about four times per month with a severity of 8-9/10, with a duration of two to four days. The Veteran indicated that he had additional limitation of motion and functional impairment with the flare-ups with increase in all symptoms, but denied bowel or bladder impairment or erectile dysfunction. On the December 2011 VA examination, flexion was to 80 degrees with objective evidence of painful motion beginning at 45 degrees. After three repetitions, flexion was to 80 degrees. The examiner indicated that the Veteran did not have additional limitation in range of motion of the thoracolumbar spine following repetitive use testing. The Veteran did have functional loss and/or functional impairment of the thoracolumbar spine, with less movement than normal, pain on movement, and interference with sitting, standing, and/or weight bearing. The above examination findings reflect that flexion has not more nearly approximated flexion to 30 degrees or less as required for a higher, 40 percent rating under the general rating formula. The March 2009, September 2011, and December 2011 VA examiners specifically indicated that there was no additional limitation of motion due to any of the DeLuca factors, including pain. While the December 2005 VA examiner did not specifically indicate whether there was additional limitation form the DeLuca factors, he indicated that pain began at 90 degrees, at the end of the range of motion, thus indicating that the pain did not limit motion. As there is no evidence that any of the DeLuca factors resulted in additional loss of motion during flare-ups or repetitive motion testing such that flexion more nearly approximated 30 degrees or less, there is no basis for a higher rating based on limitation of motion under the general rating formula. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011) ("pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system"). Although the Veteran described significant flare-ups and indicated during the Board hearing that he could bend "maybe about 15 degrees" during flare-ups, see Hearing Transcript, at 9, the Board finds the specific examination findings of the trained health care professionals who conducted the above-noted examinations to be of greater probative weight than the Veteran's general and uncertain lay statements on this question. In addition, the December 2005, March 2009, and September 2011 VA examiners indicated that there was no ankylosis and there was no indication of ankylosis on the other VA examination or in the VA treatment notes. There is therefore no basis for a higher rating under the general rating formula. For the foregoing reasons, the preponderance of the evidence reflects that the Veteran's symptoms have not more nearly approximated the criteria for a 40 percent rating at any time during the appeal period. The benefit-of-the-doubt doctrine is therefore not for application, and the claim for an initial rating higher than 20 percent for low back injury residuals must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). Right Lower Extremity Radiculopathy Note 1 to the general rating formula requires any objective neurologic abnormalities associated with a spine disability, including bowel or bladder impairment, be evaluated separately under an appropriate diagnostic code. As noted, the Veteran has been granted entitlement to service connection for right lower extremity radiculopathy. This disability is rated under 38 C.F.R. § 4.124a, DC 8620, applicable to neuritis of the sciatic nerve. Under DC 8620, a 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve; a 20 percent rating is assigned for moderate incomplete paralysis; a 40 percent rating is assigned for moderately severe incomplete paralysis; a 60 percent rating is assigned for severe incomplete paralysis with marked muscular atrophy; and an 80 percent rating is assigned for complete paralysis: the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Disability from neurological disorders is rated from 10 percent to 100 percent in proportion to the impairment of motor, sensory, or mental function, and that with partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. 38 C.F.R. § 4.120, Note. A Note preceding 38 C.F.R. § 4.124a provides that the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration and that, when the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. The 10 percent rating is effective December 19, 2005. In its May 2006 rating decision, the RO indicated that it had selected that date, the date of the VA examination discussed above and below, because that was the date that the evidence first showed that this condition existed. The Board finds to the contrary, for two reasons. First, there is evidence of right lower extremity radiculopathy in the evidence of record prior to this date. For example, a January 1999 VA treatment note indicated that the Veteran had low back pain with right radiculopathy. A February 1999 VA lumbar spine MRI report indicated that the Veteran had ongoing low back pain with right radiculopathy for about a month. A March 1999 NCS/EMG study indicated that the right lower extremity was normal although the right lumbosacral muscles showed increased insertional activity, resulting in a diagnosis of post surgical fibrillations. An April 1999 VA treatment indicated that there was back pain with radiation to the right leg. A June 2003 lumbar spine MRI report indicated that the Veteran was being evaluated for right L5-S1 radiculopathy, and the impression indicated that there was an apparent small disc protrusion with associated canal stenosis. A July 2003 VA treatment note indicates that straight leg raising test was positive on the right. The above evidence reflects that the evidence is at least evenly balanced as to whether the Veteran had right lower extremity radiculopathy prior to December 18, 2005. The benefit of the doubt doctrine requires that the reasonable doubt created by the relative equipoise in the evidence in favor of the Veteran. 38 U.S.C.A. § 5017(b); 38 C.F.R. § 3.102. Second, the Veteran's June 12, 2003 claim included a claim of entitlement to service connection for back and leg. Although the RO denied entitlement to service connection for leg problems in a September 2003 decision, the fact that the Veteran listed back and leg as a disability for which he was claiming entitlement to service connection supports the conclusion that he sought service connection for disability due to right leg radiculopathy and symptoms of this disorder from the June 12, 2003 effective date of the grant of service connection for low back injury residuals and that he is entitled to this effective date for the right lower extremity radiculopathy as well. For the following reasons, the Board finds that the Veteran is entitled to a rating of 20 percent, but no higher, for his right lower extremity radiculopathy from June 12, 2003. On the December 2005 VA examination, there was radiation of pain with motion, muscle spasm but no tenderness, and a positive straight leg raise testing on the right. Intervertebral disc syndrome was noted of the right upper anterior thigh, right anterior mid thigh, right anterior lower thigh, right inner knee, and right lateral thigh. Strength was 5/5 bilaterally, motor function was normal, and sensory function was abnormal due to paresthesias down to the right leg. Deep tendon reflexes were 1+. X-ray showed mild degenerative disc disease with degenerative facet disease. The residuals included occasional sciatic pain down the right lower extremity from the lower back and hip to the knees with increased pain with activity and no bowel, bladder, erectile dysfunction or foot drop. On the March 2009 VA examination, the Veteran reported no loss of bowel or bladder control, but burning, aching, and sharp pain to the leg, with a pain level of 8. There were also symptoms of numbness in the foot. The Veteran indicated that the condition had not resulted in incapacitation but caused him not to be able to sleep well and constantly having to change from sitting to lying, standing, bending, and stopping. There was no lumbosacral motor weakness, but there was sensory deficit of the right lateral leg and right back of the thigh. Knee and ankle jerks were 2+. There was no bowel, bladder, or erectile dysfunction. Right lower extremity radiculopathy was diagnosed, with subjective factor of history of chronic low back pain radiating to the right leg and objective factors of pain with range of motion, tenderness, and findings of radiculopathy. On the September 2011 VA examination, reflexes were a normal 2+, and muscle strength and sensation were normal. Straight leg raising resulted in some discomfort on the right at 80 degrees. The impression included degenerative changes suggesting impingement of right nerve root at L5. The examiner found that there was no evidence of paralysis of any nerves in the lower extremity, but that the Veteran did describe radiculary type symptoms involving predominantly the sciatic area on the right leg in L5-S1. The examiner described the severity of the pain in the right leg as moderate. On the December 2011 VA examination, muscle strength testing was a normal 5/5 as to the hip, knee, ankle, and toe, there was no muscle atrophy, reflexes were a normal 2+, sensory examination was normal as to the upper thigh, thigh/knee, lower leg/ankle, and foot/toes. Straight leg raising test was positive on the right. There was constant pain (which may be excruciating at times) in the right lower extremity, with moderate paresthesias and/or dysesthesias and moderate numbness. There were no other signs or symptoms of radiculopathy. The examiner indicated that the right sciatic nerve roots were involved and the severity of the radiculopathy was moderate. The above discussion reflects that the evidence is at least evenly balanced as to whether the symptoms of the Veteran's right lower extremity radiculopathy more nearly approximated moderate rather than mild incomplete paralysis. The pain was significant and constant throughout the appeal period. The only characterizations of the level of impairment from a health care professional were the December 2011 VA examiner's characterization of the radiculopathy, as well as the paresthesias and/or dysesthesias and numbness, as moderate and the September 2011 VA examiner's characterization of the pain as moderate. As the evidence is at least as evenly balanced as to whether the symptoms more nearly approximated moderate rather than mild incomplete paralysis, the Board resolves the reasonable doubt created by this relative equipoise in the evidence in favor of the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The above evidence does not, however, reflect that the symptoms more nearly approximated severe incomplete paralysis, given the normal muscle and mostly normal sensory and reflex findings. Moreover, it appears that the involvement was wholly sensory, warranting at most a rating for the moderate degree. See Note preceding 38 C.F.R. § 4.124a. A rating of 20 percent, but no higher, is therefore warranted for the Veteran's right lower extremity radiculopathy from June 12, 2003. ORDER Entitlement to an initial schedular rating higher than 20 percent for residuals of a low back injury is denied. Entitlement to an initial schedular rating of 20 percent, but no higher, for right lower extremity radiculopathy from June 12, 2003 is granted, subject to controlling regulations governing the payment of monetary awards. REMAND Although the general rating formula provides that it is to be applied with or without symptoms such as pain (whether or not it radiates), stiffness, or aching, both the lay and medical evidence reflect that the Veteran has experienced symptoms not listed in the criteria in the general rating formula. These include interference with sitting, standing, and/or weight bearing and the right leg giving out. The Board therefore finds that the schedular criteria do not adequately contemplate the Veteran's disability picture. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Veteran has also indicated that he had to leave his job due to his back disability and SSA declared him disabled due to his back disability. The evidence thus raises the issue of marked interference with employment. In these circumstances, the Board cannot address the issue of entitlement to an extra-schedular rating for the Veteran's low back injury residuals and right lower extremity radiculopathy in the first instance but, rather, must remand the claim to the RO/AMC for referral to the Under Secretary for Benefits or the Director of Compensation Service to determine whether an extraschedular rating is warranted. Id. The Board also notes that in his July 2006 notice of disagreement (NOD), the Veteran indicated that his low back disability rendered him unemployable. A claim for a TDIU is deemed to have been submitted as part of any claim for a higher initial rating or an increased rating when evidence of unemployability is submitted at the same time as the claim and the Veteran seeks the highest rating possible. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the RO recognized that the issue of entitlement to a TDIU had been raised and sent the Veteran a formal application for a TDIU, which the Veteran filed on March 2007. The RO denied the claim for the TDIU in July 2007, indicating the date of claim as July 2006, the date of the Veteran's NOD as to ratings assigned for the low back injury residuals and right lower extremity radiculopathy. In his December 2007 substantive appeal (VA Form 9) in response to the RO's November 2007 statement of the case (SOC) continuing the denial of higher ratings, the Veteran indicated that his condition was getting worse and that he was told by his doctor that he could not sustain gainful employment. The Board interprets this as a timely NOD with the denial of a TDIU. See 38 C.F.R. § 20.201 (2013) (NOD does not require special wording); Palmer v. Nicholson, 21 Vet. App. 434, 437 (2007) ("VA has always been, and will continue to be, liberal in determining what constitutes a Notice of Disagreement") (quoting 57 Fed. Reg. 4088, 4093 (Feb. 3, 1992)). Where, as here, a veteran files a timely NOD, and the RO has not issued an SOC, the claim must be remanded to the RO (as opposed to merely referred there) for issuance of an SOC. Manlincon v. West, 12 Vet. App. 238 (1999). Although the Board generally has jurisdiction over the issue of entitlement to a TDIU raised as part of a claim for a higher rating, here the RO denied the TDIU claim that was raised as part of the claim for a higher initial rating for low back injury residuals and right lower extremity radiculopathy and the Veteran disagreed with this decision. The Board therefore finds that issuance of a SOC is appropriate in these circumstances. Although the Veteran does not at this time meet the schedular requirements for a TDIU, it is the policy of VA to grant a TDIU in all cases where a service-connected disability or disabilities cause unemployability, regardless of the ratings for such disability or disabilities. 38 C.F.R. § 4.16(b). As the Board is remanding the issue of entitlement to an extra-schedular rating for the low back injury residuals and radiculopathy for referral to the Under Secretary for Benefits or the Director of Compensation Service, and there is evidence that these service-connected disabilities have rendered him incapable of obtaining and maintaining substantially gainful employment, the Board finds that referral of the claim for a TDIU on an extra-schedular basis to the Under Secretary for Benefits or the Director of Compensation Service is warranted as well. Accordingly, the claims for entitlement to an extra-schedular rating for residuals of low back injury including right lower extremity radiculopathy and to entitlement to a TDIU are REMANDED for the following action: 1. Refer the claims for entitlement to an extra-schedular rating for residuals of low back injury including right lower extremity radiculopathy and to entitlement to a TDIU to the Under Secretary for Benefits or the Director of Compensation Service. 2. Issue a SOC on the issue of entitlement to a TDIU. The Veteran and his representative are reminded that to vest the Board with jurisdiction over this issue, a timely substantive appeal (VA Form 9) must be filed following the RO's issuance of the SOC. 38 C.F.R. § 20.202 (2013). If the Veteran perfects his appeal, conduct any further appellate proceedings as are established by relevant statute, regulation, and precedent. 3. Readjudicate the claim for an extra-schedular rating for residuals of low back injury including right lower extremity radiculopathy. 4. 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. The Veteran has the right to submit additional evidence and argument on the 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). ______________________________________________ REBECCA FEINBERG Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs