Citation Nr: 1333653 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 06-31 936 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for left knee retropatellar pain syndrome, to include as secondary to the service-connected right knee disability. 2. Entitlement to service connection for right shoulder impingement, to include as secondary to the service-connected cervical spine disability. 3. Entitlement to service connection for right hip arthralgia, to include as secondary to the service-connected right knee disability. 4. Entitlement to a disability evaluation in excess of 20 percent for postoperative residuals of right knee injury with chondromalacia. 5. Whether the Veteran filed a timely substantive appeal in the matter of entitlement to an evaluation in excess of 20 percent for wedging at C-5. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Kordich, Senior Counsel INTRODUCTION The Veteran served on active duty from July 1975 to August 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from April 2005, April 2009, and September 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In a May 2010 Board decision, the Board remanded the left knee, right shoulder and right hip issues in light of an inadequate January 2005 VA examination opinions; the Board remanded for a VA medical opinion addendum concerning those claims. In addition, the remand directed that the Veteran be provided notice concerning the effective dates that could be assigned should service connection be granted those issues on appeal. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a January 2012 Board decision, the Board remanded the right knee, left knee, right shoulder and right hip issues to afford the Veteran a Travel Board hearing. The Board also remanded the issue of entitlement to an evaluation in excess of 20 percent for wedging at C-5 for the issuance of a statement of the case, pursuant to the holding in Manlincon v. West, 12 Vet. App. 238, 240-42 (1999). In addition, the Board again requested that the Veteran be provided notice under Dingess for the left knee, right shoulder, and right hip issues on appeal. The Veteran testified before the undersigned Veterans Law Judge in March 2013. A transcript of the hearing is of record. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The issues of entitlement to service connection for right shoulder impingement, entitlement to service connection for right hip arthralgia, entitlement to a disability evaluation in excess of 20 percent for postoperative residuals of right knee injury with chondromalacia and whether the Veteran filed a timely substantive appeal in the matter of entitlement to an evaluation in excess of 20 percent for wedging at C-5 are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Left knee retropatellar pain syndrome was not present in service; arthritis of the left knee was not manifested in the first post-service year; and current left knee retropatellar pain syndrome was not caused or permanently worsened by the service-connected right knee disability. CONCLUSION OF LAW Left knee retropatellar pain syndrome was not incurred in or aggravated by active service and is not proximately due to, the result of, or aggravated by the service-connected right knee disability. 38 U.S.C.A. §§ 1131, 1154, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist The VCAA and its implementing regulations provide that VA is to notify a claimant and his representative, if any, of the information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate a claim. As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b) (2013). These notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of disability; (3) a connection between service and disability; (4) degree of disability; and (5) effective date of disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006). Notice provided in support of a service connection claim must inform a claimant that if a claim is granted, VA will assign the service connected disability a rating and an effective date. Id. at 486. In this case, the RO provided the Veteran VCAA notice on the claim decided herein by a letter dated in October 2004. With regard to content, the letter reflects compliance with the pertinent regulatory provisions and case law noted above, except with respect to notice concerning an initial rating or effective date. Therein, the RO acknowledged the Veteran's claims, notified him of the evidence needed to substantiate the claim, identified the type of evidence that would best do so, notified him of VA's duty to assist and indicated that it was developing his claim pursuant to that duty. As well, it identified the evidence it had received in support of the Veteran's claim and the evidence it was responsible for securing. The RO noted that it would make reasonable efforts to assist the Veteran in obtaining all other outstanding evidence provided he identified the source(s) thereof. The RO also noted that, ultimately, it was the Veteran's responsibility to ensure VA's receipt of all pertinent evidence. Although the notification to the Veteran did not include the criteria for assigning disability ratings or effective dates, see Dingess, supra, because the Board will deny the Veteran's claim of entitlement to service connection for left knee retropatellar pain syndrome, this deficiency is harmless. Consequently, a remand to provide notice as to how initial ratings and effective dates are assigned is not necessary. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands that would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). Notice under the VCAA must be provided to a claimant prior to an initial unfavorable decision by the agency of original jurisdiction. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 119-20 (2004). In this case, the RO sent the notice letter timely, before the RO initially decided the Veteran's claim. As already explained, the notice defect as to the assignment of an initial rating and effective date is harmless. Duty to Assist The RO made reasonable efforts to identify and obtain relevant records in support of the Veteran's claim. 38 U.S.C.A. § 5103A(a), (b), (c) (West 2002). Specifically, the RO secured and associated with the claims file all evidence the Veteran identified as being pertinent to his appeal, including service treatment records, post-service treatment records, and private treatment records. VA obtained medical opinions with respect to the left knee issue in May 2010 and February 2012. The VA opinions provided the clinical findings and etiology opinions requested by the Board and necessary to adjudicate this appeal. In reviewing the VA opinions, the Board finds that they are adequate for the purpose of adjudicating this appeal. Also of record and considered in connection with the appeal is the transcript of the Veteran's March 2013 Board hearing. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, at the hearing the VLJ noted the basis of the prior determination and noted the elements that were lacking to substantiate the claim for benefits. Specifically, the VLJ elicited testimony regarding the history of the claimed left knee disorder and also sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Neither the Veteran nor his current representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), or identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits (specifically, he described the circumstances of his claimed disorder). Thus, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the appeal based on the current record. In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). In adjudicating the claim below, the Board has reviewed all of the evidence in the Veteran's claims file including those found in Virtual VA. Service Connection Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternate method of establishing the second and third Shedden/Caluza element for certain chronic disabilities listed in 38 C.F.R. § 3.309(a) (2013) is through a demonstration of continuity of symptomatology. See Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.309(a). However, service connection on the basis of continuity of symptomatology is only possible if a claimed disability is among the chronic conditions listed in 38 C.F.R. § 3.309(a), see Walker, supra. In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ([T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). For certain chronic disorders, including arthritis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2013). The Board notes that the regulation pertaining to secondary service connection was amended, effective October 10, 2006. The previous version of 38 C.F.R. § 3.310 is, however, more favorable to the Veteran under the facts of this case, and will be applied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the Veteran's claims folder shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2013). Background The Veteran's service treatment records contain no mention of complaints or treatment for a left knee condition. A Medical Board Proceeding in 1979 noted the following disabilities: lumbosacral strain, chronic; cervical spine, pain and limitation of motion; chondromalacia, patella, right knee; and hearing loss, bilateral. Neither May 1979 Medical Board nor the Veteran's April 1979 Deterioration of a Chronic Illness Examination noted any complaints concerning the left knee. VA X-rays of both knees in July 2003 revealed no evidence of fracture, dislocation or other bony abnormality. The soft tissues and joints were unremarkable. A January 2005 VA examiner diagnosed the Veteran with retropatellar pain syndrome with chondromalacia of the left knee. The examiner noted that the Veteran reported a history of two falls, the first in July 2003 and the second in August 2004, where he fell squarely on the knee, sustaining blunt trauma. In a May 2010 VA medical opinion, the physician indicated that after reviewing the Veteran's claims file, he concluded that the Veteran's left knee condition was not secondary to the service connected right knee condition. The VA physician's rationale was that there was nothing in the current orthopedic literature that would indicate that an intrinsic condition of the knee would cause an intrinsic condition within the contralateral knee. In a January 2012 Board decision, this issue was remanded by the Board, among other things, for another VA examination to address the issue of aggravation of the disability. In a February 2012 VA addendum medical opinion, the physician indicated that the claims file was reviewed. This physician also noted that he had previously answered the same questions in an opinion in May 2010 and that this opinion remained unchanged. The physician opined: There is nothing in the currently accepted, peer reviewed, credible, and authoritative orthopedic literature that would indicate that an intrinsic condition of a knee will cause intrinsic conditions within the contralateral knee or the ipsilateral hip. There is no evidence that the right knee condition has aggravated (as defined) the left knee or right hip. It is this examiner's opinion that the left knee condition and right hip condition are not related to nor secondary to the service connected right knee condition. Nor have the right hip and left knee been aggravated (as defined) by the right knee condition. At his March 2013 Travel Board hearing, the Veteran testified that a VA physician explained to him that after the March 2011 fall at work his right knee needed extensive surgery and he was going to order the Veteran a left knee brace because until he received help for his right knee, his left knee was going to be bearing the brunt of his weight. The Veteran's representative asked that the record remain open in order to submit a private medical statement concerning the Veteran's left knee disorder and its relationship with his service connected right knee disability. In March 2013, the Veteran submitted an examination report by B.S.T., M.D. concerning his right shoulder only. Analysis The Board initially notes that the Veteran does not contend, and the record does not show that the Veteran's left knee disorder originated in service or until many years after service. The Veteran contends instead that his service-connected right knee injury caused or aggravated his left knee disorder. In particular, the Veteran claims that his right knee disability was further aggravated by the March 2011 fall at work causing him to favor his left knee, and resulting in left knee retropatellar pain syndrome. When neither the Veteran nor the record raises the theory of entitlement to service connection on a direct basis, the Board need not sua sponte consider and discuss that theory. Therefore, the Board will not discuss direct service connection, but will instead focus on the Veteran's primary theory of entitlement on the basis of secondary service connection. Robinson v. Mansfield, 21 Vet. App. 545 (2008). In order for service connection to be granted on a secondary basis, three elements must be present: a current disability, a service-connected disability, and a medical nexus. See 38 C.F.R. § 3.310(a) (2013). Based upon the evidence in the claims file, the Board finds that the treatment records do not address any etiological relationship between the Veteran's left knee disorder and his service connected right knee disability. They show only that he currently has left knee retropatellar pain syndrome, but do not address the origin of any left knee abnormalities. Furthermore, there is no medical opinion linking the Veteran's left knee disorder to his service connected right knee disability and only medical opinions to address the matter are against the claim. The May 2010 and February 2012 VA examiner opined that the Veteran's left knee disorder was not secondary to or aggravated by the Veteran's service-connected right knee disability. Significantly, neither the Veteran nor his representative has submitted or identified any medical opinion that actually supports his claim. The Board points out that the examiner supported his opinion with a rationale. The Board acknowledges that the Veteran is competent to report current knee symptomatology, including pain. The Board has considered the arguments advanced by the Veteran that his left knee disorder is caused by his claimed right knee injury with chondromalacia. However, the resolution of issues that require medical knowledge requires medical evidence. It is true that the Veteran's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1154(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). See also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In some circumstances, a layperson may even be competent to offer an opinion concerning etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, determining the etiology of the left knee disorder at issue clearly requires specialized training and the disability here is not susceptible to lay opinions on etiology. This is particularly true in cases such as the present one where the disorder at issue does not involve pathology easily discernible to a layperson, and where the matter involves not observations about whether the pathology began in service, but rather whether a disability affecting a different anatomical segment played a role in the development of the disability. That determination is clearly outside the realm of lay expertise. In any event, even if the Veteran were competent to address the etiology of his disability, the probative value of his opinion is outweighed by that of the VA examiner, who clearly has the education, training, and experience to determine the etiology of disorders that is superior to that of the Veteran. In sum, there is no competent or probative evidence establishing that the service connected right knee disability caused or chronically worsened the left knee disability. Accordingly, service connection is not warranted for the left knee disorder. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance of the evidence is against the Veteran's claim, and it must be denied. ORDER Entitlement to service connection for left knee retropatellar pain syndrome, to include as secondary to the service-connected right knee disability is denied. REMAND After reviewing the record, the Board finds that a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's remaining claims so that he is afforded every possible consideration. 38 C.F.R. § 19.9 (2013). The Veteran seeks service connection for arthralgia of the right hip and right shoulder impingement syndrome. Although the Veteran has been afforded VA examinations to determine whether these disorders were aggravated by or are secondary to a service connected disability, there has not been a VA examination to determine whether the claimed disabilities of the right shoulder and right hip resulted from an injury or illness incurred in or aggravated by active military service. Unlike with the left knee disorder, there is evidence in service which raises the theory of direct service connection. Service treatment records (STR) show that in October 1975 the Veteran fell through a window while boxing and sustained multiple lacerations to the right arm. STRs also show that in November 1977 the Veteran sustained a football injury where he stated that he was struck in the back and right hip. The Veteran testified that he injured his right shoulder during service while in his position as a military policeman. The Veteran's STRs do show that a Medical Board Proceedings Narrative Summary dated in May 1979 indicated that "In 1976 while stationed in Hawaii he was allegedly beaten most severely by three "thugs" while on duty, and he was rendered unconscious for several minutes..." Throughout the development of the claims for right shoulder impingement and right hip arthralgia, the RO has not addressed the issues on a direct basis. Upon the filing of a claim for benefits, VA generally must investigate the reasonably apparent and potential causes of a veteran's condition and theories of service connection that are reasonably raised by the record or raised by a sympathetic reading of the claimant's filing. See Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000); Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (characterizing Schroeder as holding that "the duty to assist applies to the entire claim, which might require assistance in developing more than one theory in support of that claim"). Consequently, further VA examination is necessary. The Veteran is also seeking a disability evaluation in excess of 20 percent for postoperative residuals of a right knee injury with chondromalacia. The appeal must be remanded for a contemporaneous examination. VA's duty to assist includes providing a new medical examination when a veteran asserts or provides evidence that a disability has worsened and the available evidence is too old for an adequate evaluation of the current condition. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); 38 C.F.R. § 3.326(a) (2013). At the March 2013 Travel Board hearing, the Veteran asserted that his right knee disability had worsened since his last examination. The most recent examination of the Veteran for the referenced disorder was in March 2009. Accordingly, remand is required to provide the Veteran with another examination. Lastly, in a January 2012 decision, the Board remanded the issue of entitlement to an evaluation in excess of 20 percent for wedging at C-5 so that the RO could provide the Veteran with a Statement of the Case (SOC) as he had filed an August 2010 notice of disagreement with the September 2009 rating decision. The RO issued the SOC on June 21, 2012 and the RO received the VA Form 9, Appeal to the Board of Veterans' Appeals, on August 30, 2012, nine days after the 60 days had expired for submission. The Board finds that neither the RO nor the Board has waived the time requirement for filing the substantive appeal and that the Veteran has not been misled into believing that the matter is on appeal. The Court has held that a veteran has forfeited his opportunity to appeal a VA decision to the Board when he fails to comply with the requirements of 38 C.F.R. § 20.303. Roy v. Brown, 5 Vet. App. 554, 556-57 (1993) (addressing the time limit for filing extensions of time to file a substantive appeal). However, the Court has also held that, unlike a Notice of Disagreement (NOD), the filing of a substantive appeal is not jurisdictional in nature. Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). In Percy, the Court found that the Board waived the time requirement for filing a substantive appeal by its treatment of the claim as being in appellate status for a period of years. In that case, the Board also took hearing testimony on the appeal as to the merits of the claims rather than raising the issue of a late filing during the many years between the filing and a final determination. Id. at 46. In the Veteran's case, unlike Percy, there has been no explicit or implicit representation by VA, either by the RO or the Board, that it was waiving the filing requirement of a timely substantive appeal. After the VA Form 9 was received in August 2012, no subsequent correspondence from the RO pertaining to the untimely nature of the substantive appeal was sent to the Veteran. Therefore, the RO must give notification to the Veteran concerning the matter of the untimeliness of his appeal as to the issue of an evaluation in excess of 20 percent for wedging at C-5. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to identify all sources of treatment, VA and private, for his right knee, right shoulder, and right hip disabilities. With any necessary authorizations from the Veteran, obtain and associate with the claims file all outstanding records of treatment identified by the Veteran. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. If the records are unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 2. The Veteran should be afforded a VA examination by a physician with appropriate expertise to determine the nature, extent, and etiology of any currently present right shoulder impingement syndrome and right hip arthralgia disorders. The claims folder and a copy of this REMAND should be reviewed by the examiner, and the examiner must annotate on the examination report that the claims file was in fact made available for review in conjunction with the examination. All indicated tests and studies shall be conducted. The examiner should state whether it is at least as likely as not (i.e., a likelihood of 50 percent or greater) that any right shoulder impingement syndrome or right hip arthralgia found is etiologically related to the Veteran's active duty service. If the examiner cannot express any part of the requested opinions, the examiner should explain the reasons therefor. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 3. The Veteran should also be scheduled for a comprehensive orthopedic examination to determine the current severity of his postoperative right knee injury with chondromalacia. The claims folder and a copy of this REMAND must be made available to the examiner for review in conjunction with the examination. All findings should be reported in detail and any indicated tests or studies should be completed (to specifically include active and passive ranges of motion, with any further limitation of motion due to pain reported). The examiner should note whether the disability results in weakened movement, excess fatigability, or incoordination. The examiner should explain the rationale for all opinions provided. 4. The RO should issue the Veteran a Supplemental Statement of the Case (SSOC) regarding the issue of whether the Veteran filed a timely substantive appeal in the matter of entitlement to an evaluation in excess of 20 percent for wedging at C-5. The SSOC should include citations to the appropriate laws and regulations pertaining to perfecting appeals to the Board. 5. Thereafter, the RO/AMC should readjudicate the issues on appeal. If the determinations remain unfavorable to the appellant, he and his representative should be provided with a supplemental statement of the case that addresses all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered. The appellant and his representative should be given an appropriate opportunity to respond. The case should then be returned to the Board for further appellate consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs