Citation Nr: 1333623 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 07-30 186 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a rating higher than 10 percent for chondromalacia of the right knee with Osgood-Schlatter's disease. 2. Entitlement to a rating higher than 10 percent for chondromalacia of the left knee with Osgood-Schlatter's disease. 3. Entitlement to a rating higher than 10 percent for degenerative disc disease of the lumbosacral spine before April 12, 2011. 4. Entitlement to a rating higher than 20 percent for degenerative disc disease of the lumbosacral spine from April 12, 2011. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from July 1978 to July 1998. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in September 2006 of a Department of Veterans Affairs (VA) Regional Office (RO). While on appeal, in a rating decision in December 2007, the RO granted a separate 10 percent rating for instability of the left knee, effective December 8, 2007. After the Veteran was provided separate notice of the increased rating and of his appellate rights he did not appeal the separate 10 percent rating, and the claim has not been developed for appellate review. In a decision in March 2011, the Board denied the claims for increase for chondromalacia of the right knee with Osgood-Schlatter's disease and for chondromalacia of the left knee with Osgood-Schlatter's disease. The Board remanded the claim for increase for the low back disability. The Veteran then appealed the Board's decision, denying the claims for increase for the knees, to the United States Court of Appeals for Veterans Claims (Court). In February 2012, the parties (the Veteran and the VA Secretary) filed a joint motion which requested that the Board's decision be vacated and remanded. In an order in March 2012, the Court granted the joint motion. On the remanded claim for increase for the low back, while on appeal in a rating decision in February 2012, the RO increased the rating for the service-connected low back disability (formerly classified as lumbosacral strain and recharacterized as degenerative disc disease at L2/L3, L4/L5, and L5/S1) (hereinafter referred to as degenerative disc disease of the lumbosacral spine, which includes any objective neurological abnormality) to 20 percent, effective April 12, 2011. Since the increase is not the maximum available benefit and as the effective date of the increase constitutes a staged rating during the appeal period, the claim for increase for degenerative disc disease of the lumbosacral spine remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). In March 2013, the Board remanded the claims for increase for chondromalacia of the right knee with Osgood-Schlatter's disease and for chondromalacia of the left knee with Osgood-Schlatter's disease, as well as the claims for increase for the low back disability, for further development. In a rating decision in May 2013, the granted a separate 10 percent rating for radiculopathy of the right lower extremity and a separate 10 percent rating for radiculopathy of the left lower extremity, effective March 29, 2006. After the Veteran was provided separate notice of the increased ratings and of his appellate rights he did not appeal the separate 10 percent ratings, and the claims have not been developed for appellate review. The claim for increase for degenerative disc disease of the lumbosacral spine is REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. The service-connected chondromalacia of the right knee with Osgood-Schlatter's disease is manifested by flexion to 90 degrees and extension to 0 degrees without subluxation, ligament instability, or malunion of the tibia and fibula manifested by moderate knee or ankle disability; there is no additional functional loss due to pain, painful motion, weakness, excess fatigability, incoordination, swelling, atrophy or additional loss of motion associated with flare-ups or on repetitive use. 2. The service-connected chondromalacia of the left knee with Osgood-Schlatter's disease is manifested by flexion to 110 degrees and extension to 0 degrees without malunion of the tibia and fibula manifested by moderate knee or ankle disability; there is no additional functional loss due to pain, painful motion, weakness, excess fatigability, incoordination, swelling, atrophy or additional loss of motion associated with flare-ups or on repetitive use. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 10 percent for chondromalacia of the right knee with Osgood-Schlatter's disease have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5256, 5257, 5260, 5261, 5262 (2012). 2. The criteria for a rating higher than 10 percent for chondromalacia of the left knee with Osgood-Schlatter's disease have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5256, 5260, 5261, 5262 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). In a claim for increase, the VCAA notice requirements are the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting Veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided pre-adjudication VCAA notice by letter, dated in May 2006. The notice included the type of evidence needed to substantiate a claim for increase, namely, evidence that the symptoms had increased and the effect on employment. The Veteran was notified that VA would obtain VA records and records from other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any non Federal records on his behalf. The notice included the provisions for the effective date of a claim and for the degree of disability assignable. As for the content and the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (pre-adjudication VCAA notice.); of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim); and of Vazquez-Flores v. Peake, 580 F.3d 1270 (Fed. Cir. 2009) (evidence demonstrating a worsening or increase in severity of a disability and the effect that worsening has on employment). Further VCAA notice is not required. Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained VA records and afforded the Veteran VA examinations for the knees in October 2005, in October 2007, in April 2012, and in April 2013. The Veteran asserts that the VA examination in April 2013 was inadequate because the VA examiner did not use a goniometer to measure ranges of motion of the knees. 38 C.F.R. § 4.64. The protocol for the examination indicated that range of motion be measured by a goniometer. The report of the examination is inconclusive as the protocol does not ask the VA examiner to provide a "yes" or "no" response to whether a goniometer was or was not used. Even if the VA examiner did not use the goniometer, the Veteran has not met his burden of demonstrating prejudicial error, that is, an error that affected the merits of the claims. As for the merits of the claims, the question presented is whether limitation of flexion or extension meets the criteria for a compensable rating. The record shows that the VA examiner found that flexion of each knee was to 140 degrees and extension was to 0 degrees, which is normal range of motion. As the Veteran does not argue and the record does not suggest that flexion was limited to 45 degrees or less or extension was limited to 10 degrees or less, even if a goniometer was not used to measure ranges of motion, the failure did not affect the merits of the claim, and the error asserted by the Veteran was harmless error. As the reports of the VA examinations, including the examination of April 2013, were based on the Veteran's medical history and described the disabilities in sufficient detail so that the Board's decision is a fully informed one, the examinations are adequate to rate the disabilities. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). As the Veteran has not identified any additional evidence pertinent to the claims and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Rating Principles Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). In rating a disability of the musculoskeletal system, factors to consider include functional loss due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion, weakness, and pain on use, which must be regarded as serious disability. 38 C.F.R. § 4.40. Also for consideration is limited functional ability during flare-ups and with repetitive use. DeLuca v. Brown, 8 Vet. App. 202, 204-06 (1995). With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca, at 206 -07. Also with arthritis or periarticular pathology, painful motion is factor to be considered. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Rating Criteria Chondromalacia of each knee with Osgood-Schlatter's disease is rated 10 percent under Diagnostic Code 5262. Under Diagnostic Code 5262, the criteria for the next higher rating, 20 percent, is malunion or nonunion of the tibia and fibula with moderate knee or ankle disability. Limitation of motion of the knee is rated under either Diagnostic Code 5260 (limitation of flexion) or Diagnostic Code 5261 (limitation of flexion). And a separate rating may be assigned for each, that is, for limitation of flexion and for limitation of extension. Under Diagnostic Code 5260, flexion limited to 45 degrees is 10 percent disabling, flexion limited to 30 degrees is 20 percent disabling, and flexion limited to 15 degrees is 30 percent disabling. Under Diagnostic Code 5261, extension limited to 10 degrees is 10 percent disabling, extension limited to 15 degrees is 20 percent disabling, and extension limited to 20 degrees is 30 percent disabling. Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Instability of the knee is rated under Diagnostic Code 5257. Under Diagnostic Code 5257, a 10 percent rating is warranted for slight knee impairment, that is, recurrent subluxation or lateral instability. A 20 percent rating is assigned for a moderate degree of impairment, and a maximum rating of 30 percent is assigned for severe impairment. Other potentially applicable Diagnostic Codes are Diagnostic Codes 5258 and 5259. Under Diagnostic Code 5258, the criteria for a 20 percent rating are dislocation of a semilunar cartilage or meniscus with frequent episodes of locking, pain, and effusion into the joint. There is no lesser or higher rating. Under Diagnostic Code 5259, the criterion for a 10 percent rating is symptomatic removal of a semilunar cartilage or meniscus. There is no higher rating. Facts On VA examination in July 2006, the Veteran complained of bilateral knee pain, right greater than left, swelling, and instability, aggravated by standing for ten minutes, walking one block, lifting over ten pounds, or driving for 20 minutes. The Veteran indicated that he occasionally wore a knee brace. For each knee range of motion was from 0 to 130 degrees with pain on flexion, but no laxity. For each knee there was no additional limitation following repetitive use and no additional limitation during flare-up. There was painful motion, no weakness, no fatigability, and no incoordination. There was no instability. An accompanying X-ray, when compared to X-ray in August 2005, showed no change in bilateral fragmentation and irregularity of the anterior tibial tubercles, there was bilateral superior patellar tendon ossification, joint spaces were maintained, and there was no fracture or subluxation. VA records in August 2006 show normal range of motion for flexion and extension. The right knee was stable. The left knee was stable in all planes except there was mild instability of the anterior cruciate ligament. On VA examination in December 2007, the Veteran complained of bilateral knee pain, flare-ups three to four times a week, and instability almost daily. He complained of occasional right knee effusion. He stated that tolerance for walking, standing, and weight bearing was limited to 30 to 40 minutes due to knee pain. On physical examination, right flexion was to 100 degrees and extension was to 0 degrees. Because of low back pain, the VA examiner was unable to assess any additional functional loss due to repetitive testing of the right knee. Left flexion was to 110 degrees and extension was to 0 degrees with repetitive testing. The ligaments were stable, except for laxity of greater than 5mm. in the left knee. The examination included findings from a MRI in October 2007, which showed minimal degenerative changes of the posterior limb of the medial meniscus, and from X-rays in August 2007, which showed no fracture or dislocation. On private evaluation in March 2009, there was no instability or effusion. For each knee range of motion was from 0 to 130 degrees. On a private evaluation in April 2009, the Veteran used a cane due to locking of the right knee and he wore braces. For the right knee range of motion was from 0 to 90 degrees. There was no swelling or instability. For the left knee range of motion was from 0 to 110 degrees. There was no swelling or instability. There was evidence of crepitus in each knee. The findings from an accompanying MRI included chondromalacia patella and fragmented and hypertrophic or ossific appearance to the posterior margin of the distal patellar tendon and of the tibial tubercle at the distal attachment. The assessment was Osgood-Schlatter's disease and internal right knee derangement. On VA examination in January 2010, the Veteran complained of bilateral knee pain and right knee instability. The VA examiner found no swelling, instability, locking, fatigability, lack of endurance, weakness, or spontaneous flare-ups. It was noted that the Veteran used a cane and a knee brace. There was no dislocation or recurrent subluxation. The VA examiner noted the knee condition did not affect the Veteran's activities of daily living or occupational activities to a significant extent, as a mail handler at the post office, except that the Veteran would have difficulty running or walking fast because of instability. Flare-ups did not additionally limit activities of daily living or occupational activities. The physical examination showed right flexion to 120 degrees with pain in the hip area, and right extension was to 0 degrees. Left flexion was to 140 degrees, and left extension was to 0 degrees. There was no increase pain with repetition of flexion or extension. There was no fatigability, lack of endurance, weakness or incoordination with repetition of flexion and extension of the right knee. Varus and valgus stress in neutral and in 30 degrees of flexion did not reveal any instability. A private MRI in September 2012 showed moderate patellar tendinosis, but no patellar tendon tear, meniscal tear, or ligamentous disruption. On VA examination in April 2013, the Veteran complained of bilateral knee with standing over 20 minutes, as well as with squatting, climbing stairs, kneeling, and standing from a sitting position. The Veteran stated that he currently worked as a mail hander at the post office and that he was able to handle his job. It was noted that the Veteran's gait was biometrically normal. And the Veteran did not describe flare-ups. The physical examination showed right flexion to 140 degrees or greater with objective evidence of painful motion at 120 degrees. Right extension was 0 degrees with objective evidence of painful motion at 0 degrees. Left flexion was to 140 degrees or greater with objective evidence of painful motion at 120 degrees. Left extension was 0 degrees with objective evidence of painful motion at 0 degrees. The VA examiner indicated that the Veteran was able to perform repetitive-use testing with three repetitions with no additional limitation in range of motion. It was noted that the Veteran did have functional impairment with pain on movement, disturbance of locomotion, and interference with sitting, standing, and weight-bearing, but no functional impairment due to weakened movement, excess fatigability, incoordination, swelling, deformity, atrophy of disuse, or instability. There was subpatellar crepitus. There was no anterior or posterior ligament instability or mediolateral ligament instability. There was no history of recurrent patellar subluxation or dislocation or a meniscectomy. The VA examiner noted that the Veteran used a cane, but gait was biometrically normal, but slow. X-rays showed no evidence of subluxation. The VA examiner indicated that the bilateral knee disability did not impact the Veteran's ability to work. Analysis The Veteran does not assert and the record does not show malunion of the tibia and fibula of either lower extremity and the Veteran's knee complaints are more analogous to limitation of motion and instability. In the absence of evidence of malunion of the tibia and fibula of either lower extremity, moderate right or left knee disability other than that ratable as limitation of motion and instability, the criteria for the next higher rating under Diagnostic Code 5262 for either knee have not been met. Right Knee As for limitation of flexion, during the course of the appeal, right flexion was to 130 degrees with pain (VA examination in July 2006), normal (August 2006), to 100 degrees (VA examination in December 2007), to 130 degrees (March 2009), to 90 degrees (April 2009), to 120 degrees (VA examination in January 2010), and to 140 degrees with pain at 120 degrees (VA examination in April 2013). Right flexion in the range of 90 degrees to 140 degrees with pain does not more nearly approximate or equate to flexion limited to 45 degrees, the criterion for a 10 percent rating under Diagnostic Code 5260, considering functional loss due to pain, weakness, excess fatigability, swelling, deformity, atrophy, or painful movement, under 38 C.F.R. §§ 4.40, 4.45, 4.59, and during flare-ups and with repetitive use. DeLuca, 204-06. As for limitation of extension, during the course of the appeal, right extension was to 0 degrees with pain (VA examination in July 2006), normal (August 2006), to 0 degrees (VA examination in December 2007), to 0 degrees (March 2009), to 0 degrees (April 2009), to 0 degrees (VA examination in January 2010), and to 0 degrees with pain (VA examination in April 2013). Right extension to 0 degrees or normal extension does not more nearly approximate or equate to extension limited to 10 degrees, the criterion for a compensable rating for limitation of extension under Diagnostic Code 5261, considering functional loss due to pain, weakness, excess fatigability, swelling, deformity, atrophy, or painful movement, under 38C.F.R. §§ 4.40, 4.45, 4.59, and a during flare-ups and with repetitive use. DeLuca, 204-06. As for instability, during the course of the appeal, there was no right laxity or instability (VA examination in July 2006), the right knee was stable (August 2006), the right knee was stable (VA examination in December 2007), no instability (March 2009 and April 2009), no instability (VA examination in January 2010), and no instability (VA examination in April 2013). In the absence of any evidence of right subluxation or instability, the criteria for a compensable rating under Diagnostic Code 5257 have not been met. Left Knee While the Veteran is competent to describe symptoms of pain, instability and locking, the Board places greater weight on the objective and consistent findings by both VA and private health-care providers over the period of six years than the Veteran's subjective complaints. Other Considerations The 10 percent rating for each knee is the minimum rating for a knee. 38 C.F.R. § 4.59; see Burton v. Shinseki, 25 Vet. App. 1 (2011) (painful motion under 38 C.F.R. § 4.59 does not require arthritis for a minimum rating for the specific joint). While the Veteran has described bilateral knee pain, the pain does not raise to the level of the criteria for the next higher rating for limitation of flexion or extension of either knee. See Mitchell v. Shineski, 25 Vet. App. 32, 43 (2011) (pain must affect some aspect of normal movement in order to constitute functional loss under 38 C.F.R. § 4.40). As there is no history or current findings of a symptomatic semilunar cartilage, the criteria for a rating under either Diagnostic Codes 5258 (dislocation of the semilunar cartilage) or 5259 (symptomatic removal of semilunar cartilage) are not met. The Veteran argues that the criteria for a 20 percent under Diagnostic Code 5003 based on X-ray evidence of involvement of 2 or more major joints apply. In this case, the Veteran has compensable ratings for each knee and the provisions under Diagnostic Code 5003 for rating the disabilities solely on X-ray evidence do not apply as the provision applies in the absence of a compensable rating based on limitation of motion. Summary For these reasons, the Board finds that the service-connected chondromalacia of the right knee with Osgood-Schlatter's disease has been manifested by flexion limited to no less than 90 degrees and normal extension or extension to 0 degrees without malunion of the tibia and fibula manifested by moderate knee disability or slight subluxation or slight instability or additional functional loss due to painful motion, weakness, excess fatigability, incoordination, swelling, atrophy or additional functional loss due to flare-ups or repetitive use. And the Board concludes that the preponderance of the evidence is against the claim for a rating higher than 10 percent for the service-connected chondromalacia of the right knee with Osgood-Schlatter's disease under the applicable Diagnostic Codes and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). Extraschedular Consideration Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular rating is, therefore, adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Comparing the Veteran's current disability level and symptomatology to the Rating Schedule, the degree of disability is encompassed by the Rating Schedule and the assigned schedule rating is, therefore, adequate and no referral to an extraschedular rating is required under 38 C.F.R. § 3.321(b)(1). In other words, the rating criteria reasonably describe the Veteran's disability levels and symptomatology, and provided for a higher rating for more severe symptoms. For these reasons, the disability picture is contemplated by the Rating Schedule, and the assigned schedular ratings are adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). ORDER A rating higher than 10 percent for chondromalacia of the right knee with Osgood-Schlatter's disease is denied. A rating higher than 10 percent for chondromalacia of the left knee with Osgood-Schlatter's disease is denied. REMAND On the claim for increase for degenerative disc disease of the lumbosacral spine, to include radiculopathy of the right lower extremity and radiculopathy of the left lower extremity, the Veteran was last examined by VA in April 2013. In a statement received in June 2013, the Veteran specifically indicated that he had a bladder disorder, including hesitancy and leakage two to three times a day, as a result of his service-connected low back disability. He also maintained that he had low sex drive due to his low back disability. The April 2013 VA examination report included a notation that the Veteran did not have other neurological abnormalities related to his low back disability such as bowel or bladder problems, or pathologic reflexes. The Veteran's June 2013 statement raises a question as to the severity of his service-connected degenerative disc disease of the lumbosacral spine, to include his radiculopathy of the left and right lower extremities. As there is a need to verify the current severity of the disability, a VA reexamination is necessary. 38 C.F.R. § 3.327(a). Accordingly, the case is REMANDED for the following: 1. Ask the Veteran to submit or authorize VA to obtain record pertaining to his service-connected degenerative disc disease of the lumbosacral spine, to include radiculopathy of the right lower extremity and radiculopathy of the left lower extremity, since May 2013. 2. Afford the Veteran a VA examination by a VA examiner, who has not previously examined the Veteran, to determine the current severity of his service-connected degenerative disc disease of the lumbosacral spine, including his radiculopathy of the right lower extremity and radiculopathy of the left lower extremity. The examination should include an electromyography (EMG) and nerve conduction studies, if appropriate, to determine whether there are any objective neurological abnormalities associated with the service-connected degenerative disc disease of lumbosacral spine. The VA examiner is asked to determine the severity of degenerative disc disease of the lumbosacral spine and to describe: Range of motion in degrees, considering painful movement and additional functional impairment due to flare-ups or repetitive motion, Any objective neurological abnormality in the lower extremities, that is, motor or sensory loss due to degenerative disc disease, and, Any incapacitating episodes (a period of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician). The Veteran's file should be provided to the VA examiner for review. 3. After the above development is completed adjudicate the claims. If any of the benefits sought remain denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. 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). The 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. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs