Citation Nr: 1334771 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 09-01 511 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an increased rating in excess of 20 percent for degenerative disc disease of the thoracic spine and in excess of 40 percent from February 23, 2011. 2. Entitlement to a separate rating for neurological deficits of the right lower extremity, as a manifestation of degenerative disc disease of the thoracic spine. 3. Entitlement to a separate rating for neurological deficits of the left lower extremity as a manifestation of degenerative disc diseases of the thoracic spine. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from August 1973 to July 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. A Travel Board hearing was scheduled in July 2013. The Veteran failed to appear for the hearing. The issues of entitlement to separate ratings for neurological manifestations of the right and left lower extremities are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. For the period prior to February 23, 2011, degenerative disc disease of the thoracic spine was manifested by forward flexion of the thoracolumbar spine to 30 degrees or less and without favorable ankylosis of the entire thoracolumbar spine or incapacitating episodes as defined by regulation. 2. For the period from February 23, 2011, degenerative disc disease of the thoracic spine was not manifested by unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes as defined by regulation. CONCLUSIONS OF LAW 1. Prior to February 23, 2011, the criteria for a disability evaluation in excess of 20 percent for degenerative disc disease of the thoracic spine have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321(b), 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5235 to 5243 (2012). 2. From February 23, 2011, the criteria for a disability evaluation in excess of 40 percent for degenerative disc disease of the thoracic spine have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321(b), 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5235 to 5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist As provided for by VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ, in this case the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In a claim for an increased rating, the VCAA requires only generic notice as to 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, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Here, a letter dated in a July 2006 letter, the RO informed the Veteran of the evidence required to substantiate his claim for an increased rating. The July 2006 letter included notice regarding effective dates and disability ratings. A notice letter in March 2009 fulfilled the requirements of Vazquez. The March 2009 letter informed the Veteran of how disability rating are determined and informed the Veteran that evidence to be considered in determining a disability evaluation includes the nature and symptoms of the condition, the severity and duration of symptoms and the impact of the condition on employment and daily life. The letter listed examples of evidence that may affect how a disability evaluation is assigned. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record indicates that the RO obtained all information relevant to the Veteran's claim. The service treatment records have been obtained, as well as post-service VA treatment records identified by the Veteran. The Veteran was afforded VA examinations in August 2006, August 2009 and February 2011. When VA undertakes to provide a VA examination or obtain a VA examination or opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran has been afforded adequate examinations. The claims file and treatment records were reviewed, the Veteran's history was taken, and the examiners provided complete findings, which addressed the rating criteria pertaining to the Veteran's disability. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the relevant records, and has provided adequate examinations to the Veteran. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the policy of the 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. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant's favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. The Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. Degenerative disc disease of the thoracic spine is rated according to the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. Under the General Rating Formula, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a 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 requires that the condition be manifested by forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. There are several notes following the General Rating Formula criteria, which provide the following: First, associated objective neurological abnormalities are to be rated separately under an appropriate diagnostic code. Second, for purposes of VA compensation, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateroflexion is 0 to 30 degrees, and left and right lateral rotation is 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateroflexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is to 240 degrees. Third, in exceptional cases, an examiner may state that, because of age, body habitus, neurological 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 the regulation. 38 C.F.R. § 4.71a. The Formula for Rating Intervertebral Disc Syndrome based upon Incapacitating Episodes provides that a 10 percent rating is warranted with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is assignable with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is assignable with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For purposes of evaluations under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). I. Degenerative Disc Disease of the Thoracic Spine, Prior to February 23, 2011 Service connection for degenerative disc disease of the thoracic spine was granted in a March 1982 rating decision, and a 10 percent rating was assigned. A 20 percent rating was assigned from December 19, 2002. A claim for an increased rating was received in March 2006. In August 2006, the Veteran had a VA examination. The Veteran reported increased pain of his thoracic spine. He reported that his treatment included tramadol, a TENS unit and a heating pad. The Veteran denied incapacitating episodes. Upon physical examination, the Veteran had normal posture and head position. Gait was normal. There were no abnormal spinal curvatures. The examiner indicated that there was no ankylosis present. Examination of the left and right sacrospinals showed no spasm, atrophy, guarding, pain with motion, tenderness or weakness. Forward flexion of the thoracolumbar spine was to 45 degrees, with pain from 0 to 45 degrees. The Veteran had right and left lateral rotation to 15 degrees, with pain from 0 to 15 degrees. The examiner noted that the Veteran had loss of flexion with repetition. With repetition, the Veteran had flexion from 0 to 40 degrees, with loss of motion due to pain. In August 2009, the Veteran had a VA examination. The Veteran reported a constant ache in the lower and mid back. He reported that the pain was moderate in severity. The Veteran reported radiating pain in the lower extremities. The Veteran reported two incapacitating episodes of the thoracolumbar region in the previous 12 months, each lasting three to four weeks. On physical examination, the Veteran's gait was antalgic and slow. There was no abnormal spinal curvature. There was no ankylosis. Examination of the thoracic sacrospinals showed spasm, guarding, tenderness and pain with motion on the left and right. There was no atrophy or weakness on the left or the right. The VA examiner noted that the muscle spasm, localized tenderness or guarding was not severe enough to be responsible for abnormal gait or abnormal spinal contour The Veteran had forward flexion to 40 degrees. The Veteran had left and right lateral rotation to 20 degrees. The VA examiner noted that there was objective evidence of pain on active range of motion. The VA examiner noted that there were no additional limitations after three repetitions of range of motion. The VA examiner noted that there were incapacitating episodes due to intervertebral disc syndrome. The VA examiner did not specifically indicate the duration of the incapacitating episodes. Motor examination showed normal tone throughout and no atrophy. Sensory examination showed normal pain, light touch and position sense of the upper extremities. Sensory examination of the lower extremities showed reduced pain and light touch of the lower extremities and normal position sense. The VA examiner noted abnormal sensation of the toes bilaterally. Reflex examination showed normal reflexes of the biceps, triceps, brachioradialis and reduced knee jerk and ankle jerk. Plantar flexion was normal on the right and left. In a statement dated in May 2009, the Veteran stated that his limitation of motion has increased, leaving him in constant dull pain. The Veteran stated that he had incapacitating episodes that lasted over 4 weeks, at least three times a year. The Veteran stated that, during these times, he uses pain pills, a TENS unit, and bed rest prescribed by a physician. In a statement dated in June 2010, a VA physician assistant noted that the Veteran had significant thoracic, cervical, and lumbar spine pain due to degenerative disc disease, and experienced periods of incapacitation that were only relieved when using a TENS unit, tramadol, moist heat packs and bed rest. However, the clinician did not identify the period of incapacitation that required treatment by a physician and prescribed bed rest due to the Veteran's thoracic spine disability. The Board finds that a rating in excess of 20 percent is not warranted for degenerative disc disease of the thoracic spine for the period prior to February 23, 2011. The evidence during this time period shows that the Veteran had flexion of the thoracolumbar spine of 40 degrees or greater. Therefore, the flexion of the thoracolumbar spine did not more nearly approximate flexion limited to 30 degrees or less. The Veteran's range of motion did not approximate a higher rating based on forward flexion limited to 30 degrees or less, even with consideration of the Veteran's limitations due to pain. Therefore, the Board finds that even with consideration of the Veteran's functional loss, the Veteran's disability picture does not meet the criteria described for a higher 20 percent rating under the General Rating Formula for the period from February 23, 2011. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. at 202. The Board finds that a rating in excess of 20 percent is not based on the formula for incapacitating episodes. In this case, although the Veteran has variously reported that he has had from 4 to 12 weeks of "incapacitating episodes" in a 12 month period, that term is specifically defined by regulation. As noted, to meet that requirement, the evidence must show a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. While the evidence shows ongoing treatment for the Veteran's thoracic spine disability, the actual contemporaneous records do not show prescribed bed rest for 4 to 6 weeks such that a higher rating would be in order. Thus, while the Veteran is competent to report that he has periods where his thoracic spine disability incapacitates him, the record does not show that bed rest has been prescribed for a qualifying period of time. The Board has also considered the June 2010 medical statement which indicated that the Veteran experienced periods of incapacitation due to degenerative disc disease of the cervical, thoracic, and lumbar spine. Although the statement noted periods of incapacitation, the examiner does not delineate the duration and period of time in which there was prescribed bed rest by a physician due specifically to the Veteran's thoracic spine disability. As such, the examiner's statement is insufficient to establish that the symptoms associated with the Veteran's thoracic spine disability meet the applicable criteria. For the reasons set forth above, the Board finds that a rating in excess of 20 percent is not warranted for the period prior to February 23, 2011. The Board finds that the preponderance of the evidence is against the claim for an increased disability rating in excess of 20 percent for degenerative disc disease of the thoracic spine for the period prior to November 23, 2011. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). II. Degenerative Disc Disease of the Thoracic Spine, From February 23, 2011 In February 2011, the Veteran had a VA examination. The Veteran reported that he was also limited in performing any activity that required forward flexion of his lower back. The Veteran reported leg or foot weakness, falls and unsteadiness. The Veteran reported radiation of pain into the bilateral lower extremities. Upon physical examination, the Veteran's posture and head position were normal. His gait was mildly antalgic. Examination of the spine showed lumbar flattening. There was no gibbus, kyphosis, list, lumbar lordosis, scoliosis, reverse lordosis or thoracolumbar spine ankylosis. Examination of the thoracic sacrospinals showed spasm, guarding, pain with motion and tenderness on the left and right. There was no weakness of the thoracic sacrospinals. Motor examination showed normal muscle tone. The VA examiner indicated that there was no muscle atrophy. Sensory examination of the upper extremities was normal. Sensory examination of the lower extremities showed abnormal sensation of the right great toe. Reflex examination showed normal knee jerk and plantar flexion. Reflexes of the biceps, triceps, brachoradialis, and ankle jerk were hypoactive. The Veteran had thoracolumbar flexion to 30 degrees and extension to 20 degrees. The VA examiner noted that there were no incapacitating episodes for the past 12-month period. X-rays of the thoracic spine were unremarkable. The Board must assess the competence and credibility of the Veteran. Here, the Veteran is competent to give evidence about what he observes or experiences; for example, he is competent to report that he experiences certain symptoms such as pain. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The Board acknowledges the Veteran's complaints. However, when considered collectively with the medical evidence of record, the assigned ratings for degenerative disc disease of the thoracic spine is consistent with the overall level of impairment demonstrated during the periods on appeal even with consideration of the criteria outlined in DeLuca, supra. The Board finds that a rating in excess of 40 percent is not warranted for degenerative disc disease of the thoracic spine for the period from February 23, 2011. For the period from February 23, 2011, unfavorable ankylosis of the thoracolumbar spin is not shown. Therefore, the criteria for a 50 percent rating under the General Rating Formula for Diseases and Injuries of the Spine are not met. In addition, the evidence does not show incapacitating episodes, requiring bed rest prescribed by a physician and treatment by a physician, having a total duration of at least 6 weeks during a 12-month period. As such, a rating in excess of 40 percent is not assignable based upon incapacitating episodes. Accordingly, the Board finds that the preponderance of the evidence is against the claim for an increased disability rating in excess of 40 percent for degenerative disc disease of the thoracic spine for the period from February 23, 2011. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Finally, the Board notes that the rating criteria provide that any associated objective neurologic abnormalities be evaluated separately. As this aspect of the Veteran's increased rating claim requires additional development, the Board will defer consideration of separate ratings for neurologic impairment pending completion of the development as outlined in the remand below. Extraschedular considerations In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Here, the Board finds that the rating criteria contemplate the Veteran's service-connected degenerative disc disease of the thoracic spine. A comparison between the level of severity and symptomatology of the Veteran's thoracic spine disability with the established criteria found in the rating schedule for that disability shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology, as discussed above. The rating criteria of the General Rating Formula for Diseases and Injuries of the Spine contemplate limitation of motion of the thoracolumbar spine and whether there are incapacitating episodes due to intervertebral disc syndrome. The rating criteria also takes into consideration functional loss due to pain, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, and atrophy of disuse. As such, the rating criteria are therefore adequate to evaluate the Veteran's degenerative disc disease of the thoracic spine, and referral for consideration of an extraschedular rating is not warranted. ORDER Entitlement to a rating in excess of 20 percent for service-connected degenerative disc disease of the thoracic spine prior to February 23, 2011 is denied. Entitlement to a rating in excess of 40 percent for service-connected degenerative disc disease of the thoracic spine from February 23, 2011 is denied. REMAND The Veteran may be entitled to separate ratings for additional neurological deficits related to the service-connected lumbar spine disability. Under the General Rating Formula for Diseases and Injuries of the Spine, any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a , General Rating Formula, Note (1). The August 2009 VA examination shows that the Veteran reported numbness and paresthesias and leg or foot weakness. The August 2009 VA examination also noted abnormal sensation of the left and right toes. The VA examiner did not identify the peripheral nerves involved and did not indicate whether the findings are related to the Veteran's service-connected thoracic spine disability. The November February 2011 VA examination shows that the Veteran reported weakness of the bilateral lower extremities. The examiner noted that there was radiation of pain into the bilateral lower extremities. Sensory examination showed abnormal sensation of the right great toe. The record does not contain sufficient medical evidence to determine whether separate ratings are warranted for neurological deficits of the bilateral lower extremities. The Board finds that a VA examination is warranted to ascertain whether there are neurological abnormalities of the lower extremities which are related to the Veteran's service-connected degenerative disc disease of the thoracic spine. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for the appropriate VA examination to determine whether the Veteran has separate compensable neurological deficits of the lower extremities caused by the service-connected degenerative disc disease of the thoracic spine. The claims file must be made available to the examiner in conjunction with the examination. The examination report should indicate that the claims file was reviewed. Any studies and tests deemed necessary by the examiner should be accomplished. The examiner should: a) identify any neurological impairment associated with the Veteran's degenerative disc disease of the thoracic spine; b) specifically identify any affected nerve and should indicate whether there is incomplete or complete paralysis of the nerve. c) if there is incomplete paralysis, the VA examiner should state whether it is mild, moderate or severe. 2. After the completion of the requested development, review the record and determine if separate ratings are warranted for neurological impairment of the right and left lower extremities associated with service-connected degenerative disc disease of the thoracic spine. If the benefit sought is not granted, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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. 2012). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs