Citation Nr: 1333826 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 08-10 068A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa THE ISSUES 1. Entitlement to a rating in excess of 20 percent for lumbar spine spondylolisthesis from August 31, 2006, through May 3, 2007. 2. Entitlement to a rating in excess 20 percent for lumbar spine spondylolisthesis from May 1, 2009. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty for training from March 19 to June 25, 1998, and on active duty from October 2004 to August 2006, and from May 2007 to April 2009. This matter came before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision by the Des Moines, Iowa, Regional Office (RO), which granted service connection for spondylolisthesis of the lumbar spine, and assigned a 10 percent disability rating, effective from August 31, 2006. Subsequently, in September 2008, the RO increased the Veteran's rating for lumbar spine spondylolisthesis from 10 percent to 20 percent, effective from August 31, 2006, to May 3, 2007, at which point the rating was discontinued because the Veteran returned to active military duty. See 38 C.F.R. § 3.654(a) (2013). The Veteran, accompanied by his representative, appeared and offered testimony at a hearing before a Decision Review Officer (DRO) at the RO in September 2008. A transcript of that hearing is of record. Subsequently, in a rating decision dated in November 2009, the RO reinstated the 20 percent evaluation, effective from May 1, 2009. (Although the RO had not originally considered the propriety of the rating since May 1, 2009, it later addressed this issue in a February 2010 supplemental statement of the case, making it part of the appeal.) On June 7, 2012, the Board issued a decision that denied the Veteran's claim of entitlement to a rating in excess of 20 percent for lumbar spine spondylolisthesis from August 31, 2006, through May 3, 2007, and from May 1, 2009. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims. In February 2013, the Veteran's representative and the VA General Counsel filed a joint motion to remand. In March 2013, the Court granted the joint motion and remanded the case to the Board for readjudication consistent with the motion. (The issue of entitlement to a rating in excess of 20 percent from May 1, 2009 is addressed in the remand that follows the decision below.) FINDING OF FACT From August 31, 2006, to May 3, 2007, the Veteran's low back disorder was productive of not more than moderate impairment with appreciable limitation of motion, but he was shown to have flexion to at least 90 degrees, with no muscle spasm or neurological component objectively shown, and no additional limitation of function from incoordination, excess fatigability, pain, or weakness. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for lumbar spine spondylolisthesis were not met during the period from August 31, 2006, through May 3, 2007. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5239 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, VA satisfied its duty to notify by means of letters dated in October 2006 and April 2007 from the RO to the Veteran, which were issued prior to the RO decision in July 2007. An additional letter was issued in June 2009. Those letters informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. The Board finds that the content of the above-noted letters provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Regarding the duty to assist, the Veteran was provided an opportunity to submit additional evidence. It also appears that all obtainable evidence identified by the Veteran relative to the question decided herein has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence not already of record that would need to be obtained for a proper disposition of this claim. It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notice. The Veteran has been afforded VA examinations. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examinations were conducted by medical professionals who reviewed the medical records, solicited history from the Veteran, and provided information necessary to apply the pertinent rating criteria. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). Accordingly, the Board finds that VA has satisfied its duty to the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to the claim decided herein. Therefore, no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Background The service treatment records show that the Veteran received treatment on several occasions for chronic low back pain. A Medical Board proceeding, dated in December 2005, noted that the Veteran had a history of recurrent back pain. On January 31, 2006, he underwent L5-S1 bilateral laminectomies, facetectomies, and instrumented allograft fusion. A follow-up MRI in February 2007 showed the allograft had not fused and he was diagnosed as having had a failed lumbar fusion. The Veteran was afforded a VA examination in December 2006. It was noted that the Veteran spent approximately six months in Iraq in the Army as a combat engineer. His job was to find and diffuse roadside bombs. The Veteran reported being "blown up with close ones four to five times," and he was knocked down hard once when he hurt his back. The Veteran indicated that he started having low back pain when he was in Iraq. He stated that he is unable to sit or stand for long, and he was not comfortable when he slept. The Veteran also reported intermittent numbness in the left leg, and he stated that he had a belt that he had to wear at work because working aggravated his pain and numbness. In January 2006, the Veteran underwent a fusion of L5-S1; then, in May 2006, he was noted to have numbness and tingling in his feet, and an MRI was done that showed grade I spondylolisthesis from L5 to S1 and retrolisthesis from L4 to L5. It was noted that the Veteran had severe 1 cm right parasagittal superior extrusion with several foramina. He had severe foraminal stenosis from L5 to S1 and moderate to severe foraminal stenosis on the left. On examination, the low back flexed to 90 degrees and extended to 10 degrees. Lateral rotation was to 45 degrees bilaterally, and lateral flexion was to 30 degrees bilaterally. The impression was spondylolisthesis of the lumbar spine with chronic low back pain. Received in June 2007 were VA progress notes dated from October 2006 to January 2007. These records show that the Veteran received ongoing clinical attention and treatment for chronic low back pain. The Veteran was seen for a follow-up evaluation in October 2006; the assessment was back pain, status post L2-S1 fusion stable, well controlled with current pain regime; no neurologic deficits were noted. The Veteran was accepted for active duty beginning in May 2007 and served until April 2009. At his personal hearing in September 2008, the Veteran indicated that he had been unable to bend and pick up items. The Veteran reported that he experienced numbness and tingling in his back. The Veteran testified that he had difficulty sleeping; he stated that he had difficulty getting into a comfortable situation. The Veteran also stated that he had difficulty negotiating steps. III. Analysis Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2013). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). A disability may require re-evaluation in accordance with changes in a Veteran's condition. It is thus required, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Where an award of service connection for a disability has been granted and the assignment of an initial evaluation is at issue, separate evaluations can 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, 126 (2001). The Court has held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. See 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. See 38 C.F.R. § 4.45. After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a). The Veteran's service-connected lumbar spine disability is evaluated under the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (2012). Spondylolisthesis is specifically listed under Diagnostic Code 5239. Under the general rating formula for diseases and injuries of the spine, ratings are assigned as follows: a 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating is awarded for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. (Here, the Veteran has been separately rated for neurologic symptoms affecting the lower extremities because of his back disability, and these ratings have not been made part of the appeal.) Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Intervertebral disc syndrome (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months warrants a 40 percent evaluation. A 60 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. The United States Court of Appeals for Veterans Claims (Court) has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). Pain "may result in functional loss, but only if it limits the ability 'to perform the normal working movements of the body with normal excursion, strength, speed, coordination[, or] endurance.'" Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The Board notes that the guidance provided by the Court in DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered. As noted above, in July 2007, the RO granted entitlement to service connection for spondylolisthesis of the lumbar spine, and assigned a 10 percent evaluation effective from August 31, 2006. The Veteran disagreed with the evaluation and subsequently perfected this appeal. Subsequently, in September 2008, the RO increased the evaluation for the lumbar spine from 10 percent to 20 percent, effective from August 31, 2006, through May 3, 2007, at which time benefits were discontinued when the Veteran was recalled on active duty. After review of the evidentiary record, with consideration of the schedular criteria set forth above, the Board finds that a higher evaluation is not warranted during the period from August 31, 2006, through May 3, 2007. The 20 percent evaluation contemplates forward flexion less than 60 degrees or a combined range of motion not greater than 120 degrees. In order to warrant a higher evaluation, the disability must approximate the functional equivalent of limitation of forward flexion to 30 degrees or less. See DeLuca, 38 C.F.R. §§ 4.40, 4.45, 4.59 (2013). In this case, neither the objective nor subjective evidence suggests the presence of the functional equivalent of forward flexion limited to 30 degrees or less. Specifically, none of the records during the period in question reflects that the Veteran's flexion of the lumbar spine was limited to 30 degrees or less, even when pain or other functional loss was taken into account. In fact, the December 2006 examination noted flexion to 90 degrees. While the Veteran reported pain and stiffness in the back, and received treatment for his back, there is simply no evidence documenting that the Veteran has had limitation of flexion to 30 degrees or less during the period in question. Nor is there any evidence the Veteran has favorable ankylosis of the entire thoracolumbar spine. In fact, there was no finding of ankylosis of the thoracolumbar spine, either favorable or unfavorable during the December 2006 VA examination. Thus, the evidence clearly shows the Veteran continues to have motion, albeit limited, of the lumbosacral spine. The Board acknowledges that the Veteran has repeatedly complained of pain associated with his lumbosacral spine disorder. The record also reveals that the Veteran has at various times taken medication and undergone treatment to address the pain. Nevertheless, during a follow-up evaluation in October 2006, the examiner reported an assessment of status post L2-S1 fusion stable, well-controlled on current pain regime. Thus, even considering the effects of pain, fatigue, weakness, or lack of endurance, the Veteran continued to have function equivalent of motion greater than 30 degrees of flexion during the period from August 31, 2006 to May 3, 2007. In other words, the current 20 percent evaluation assigned contemplates the effect of the Veteran's complaints of pain, fatigue, limitation of movement and lack of endurance, and an increased evaluation based on pain is not warranted. 38 C.F.R. §§ 4.45, 4.71a, Diagnostic Code 5239; DeLuca v. Brown, 8 Vet. App. 202 (1995). (Although the 2006 VA examiner did not provide a detailed assessment by which functional losses due to pain were equated to additional loss of motion, such a problem may not now be cured by a current examination because current symptoms and examination findings would not pertain to the 2006-2007 period. The salient point to be made is that the evidence for that period has not shown losses sufficient to warrant a higher rating, especially given the specific examination findings that were made and the fact that the Veteran was apparently well enough by May 2007 to return to active duty service.) With respect to whether a higher evaluation might be assignable based on the criteria for intervertebral disc disease causing incapacitating episodes, the Board finds that the evidence does not support a higher rating. As noted above, a 40 percent rating for intervertebral disc syndrome requires incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the a 12-month period. An "incapacitating episode" is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that required bedrest prescribed by a physician and treatment by a physician. Based on the lay and medical evidence, the Board finds that the service-connected disability warrants no more than a 20 percent evaluation for the period in question. The Board does not find that the above-noted evidence demonstrates the Veteran's low back disability has been manifested by any incapacitating episode during the period at issue. (As already noted, he had more significant problems while on active duty, for which VA may not award compensation.) While he reported on-going back pain, the defining criteria for a higher rating based on disc disease is that he must have been prescribed bed rest and treatment by a physician. In fact, the Veteran has not reported any incapacitating episodes requiring bed rest prescribed by a physician and treatment by a physician during the period addressed herein. In addition, the record does not show that the Veteran had been hospitalized for intervertebral disc syndrome during this period prior to May 3, 2007. Thus, a rating in excess of 20 percent is not available based on incapacitating episodes. See 38 C.F.R. § 4.71a (2012). Referral for consideration of an extra-schedular rating under 38 C.F.R. § 3.321(b) is not warranted. Although the Veteran reports that he experienced daily pain, there were no recurring periods of hospitalization. The very symptoms experienced by the Veteran were those addressed in the pertinent criteria as noted in the discussion above. As such, this case does not present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b). In arriving at the determination above, the Board has considered the lay evidence offered by the Veteran, his spouse, and his representative in the form of correspondence and testimony in which it has generally been asserted that the Veteran is entitled to higher disability ratings for his back disability due to his reported symptoms. The Board notes that the Veteran is competent to report his own overall symptomology and a layperson can certainly provide an eyewitness account of a veteran's visible symptoms. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, they do not show that his symptoms more closely approximate the schedular criteria for the next higher evaluation. 38 C.F.R. § 4.71a. In sum, the Board finds that a rating in excess of 20 percent is not warranted for spondylolisthesis of the lumbar spine during the period from August 31, 2006, to May 3, 2007. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Because the preponderance of the evidence is against the claim for a higher rating for this period, the benefit-of-the-doubt doctrine is not helpful to the Veteran. 38 U.S.C.A. § 5107; see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER A rating in excess of 20 percent for lumbar spine spondylolisthesis during the period from August 31, 2006, through May 3, 2007, is denied. REMAND In its June 2012 decision, the Board determined that a rating in excess of 20 percent was not warranted for lumbar spine spondylolisthesis after May 1, 2009. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In an order dated in March 2013, the Court granted a joint motion of the parties to vacate the Board's decision and remanded the claim for readjudication by the Board. In the February 2013 Joint Motion for Remand, the parties found that, while the Veteran reported severe weekly flare-ups that last for hours and that the examiner described as "severe and some rare (random) episodes are incapacitating, the Board did not adequately discuss the effects of the Veteran's reported flare-ups and whether such flare-ups cause additional disability sufficient to entitle him to a higher disability evaluation. The parties also suggested that the July 2009 VA examination, upon which the Board based its decision, did not adequately address the matter of functional loss as outlined by the Court's decision in DeLuca v. Brown, 8 Vet. App. 202 (1995). The Joint Motion also concluded that the Board's DeLuca analysis was insufficient. Accordingly, the Board believes that remand of the case is necessary to obtain an additional VA examination which specifically addresses the requirements of DeLuca, particularly functional loss during flare-ups or on repeated use. For disabilities evaluated on the basis of limitation of motion such as a low back disability, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45 (2013) pertaining to functional impairment. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare ups. These determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should also determine the point, if any, at which such factors cause functional impairment. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2013). In the July 2009 VA examination report, the examiner reported pain and additional functional loss due to fatigue, weakness, and instability with repetitive motion. He did not specify as to whether the pain resulted in functional impairment equating to additional limitations. See Mitchell, supra. If an examination report does not contain sufficient detail, further action is required. 38 C.F.R. § 4.2 (2013). Once VA provides an examination addressing a claimed disability, the examination must be adequate or VA must notify the veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As noted above, the Veteran's most recent VA examination for evaluation of the back disorder was conducted in July 2009. Therefore, the Board finds that to ensure that the record reflects the current severity of the Veteran's service-connected low back disorder on appeal, and to adequately address the concerns expressed by the parties in the joint motion, it is the judgment of the Board that the Veteran should be provided an examination, with findings responsive to all applicable rating criteria. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). In order to comply with the joint motion, the Veteran needs to be reexamined to assess the current severity of his low back disorder. The case is therefore REMANDED to the agency of original jurisdiction (AOJ) for the following actions: 1. The AOJ should contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA or private medical care providers who have treated him for his low back disorder since April 2009. The AOJ should attempt to obtain copies of pertinent treatment records identified by the appellant that have not been previously secured and associate them with the claims folder. If attempts and necessary follow-up attempts to obtain any additionally identified records prove unsuccessful, and it is determined that further attempts would prove futile, then document this in the file and notify the appellant of this in accordance with 38 C.F.R. § 3.159(e). 2. The Veteran should thereafter be afforded a VA compensation examination in order to determine the severity of the service-connected low back disability. The claims file must be made available to and reviewed by the examiner prior to the requested examination. All necessary tests and studies should be conducted and the examiner should review the results of any testing prior to completion of the report. The examiner should fully describe the extent and severity of all symptoms due to the Veteran's back disability. Range-of-motion studies for the lumbar spine should be conducted. The examiner should first record the range of motion observed on clinical evaluation, in terms of degrees of extension, forward flexion, left and right lateral flexion, and left and right rotation. If there is clinical evidence of pain on motion, the examiner should indicate the degree of flexion, extension, and/or rotation at which such pain begins. The examiner should provide an opinion, based upon his or her best medical judgment, as to the extent to which the Veteran experiences functional impairments such as weakness, excess fatigability, incoordination, or pain due to repeated use or flare-ups, and should, with respect to each plane of motion tested, portray these factors in terms of degrees of additional loss in range of motion (beyond that which is demonstrated clinically) due to these factors. (Such information requires conjecture on the examiner's part, but this is what is required under DeLuca.) The examiner should also indicate whether there have been any incapacitating episodes requiring prescribed bed rest. The duration and frequency of such episodes should be specifically noted. Finally, the examiner should provide an opinion as to the degree to which the Veteran's low back disorder interferes with his ability to secure and follow substantially gainful employment, with specific references to any tasks or activities precluded by the disability. The examiner should provide a comprehensive report including complete rationale for all conclusions reached. 3. The AOJ should ensure that all requested actions have been accomplished in compliance with this remand. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. 4. The AOJ should consider whether referral for extraschedular consideration is warranted. Thereafter, readjudicate the claim for a higher rating from May 1, 2009, on the basis of all evidence of record and all applicable laws and regulations. If the benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC). Thereafter, the Veteran and his representative should be given the opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs