Citation Nr: 1337200 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 10-31 883A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for degenerative disc disease of the lumbar spine. 2. Entitlement to service connection for a cervical spine (neck) disorder. 3. Entitlement to service connection for depression, to include as secondary to service-connected disabilities. 4. Entitlement to service connection for residuals of a cracked skull, to include labyrinithitis and vertigo. 5. Entitlement to service connection for residuals of a jaw injury, to include a dental condition. 6. Entitlement to an initial rating higher than 30 percent for residuals of a fractured pelvis. 7. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Jan Dils, Attorney at Law WITNESSES AT HEARING ON APPEAL Veteran & B.A. ATTORNEY FOR THE BOARD L. Edwards, Counsel INTRODUCTION The Veteran had active service from June 1974 to June 1977 and September 1979 to November 1989. This matter comes before the Board of Veterans' Appeals (BVA or Board) from May 2009 and March 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Offices (RO) in Augusta, Maine and Cleveland, Ohio. The matter is now handled by the RO in Cleveland, Ohio. The Veteran requested a hearing before the Board. The requested hearing was conducted in July 2013 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. In a March 2012 rating decision, the RO granted an increased initial evaluation of 30 percent for residuals of a fractured pelvis, effective August 2008. Despite the grant of this increased initial evaluation, the Veteran has not been awarded the highest possible evaluation. As a result, he is presumed to be seeking the maximum possible evaluation. The issue remains on appeal, as the Veteran has not indicated satisfaction with the 30 percent rating. A.B. v. Brown, 6 Vet. App. 35 (1993). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU rating is part of an appeal for a higher initial rating claim when such claim is raised by the record. Here, the Board notes that during the July 2013 BVA Hearing, the Veteran testified that his disabilities prevent him from being employed. See July 2013 BVA Hearing Transcript, page 27. As such, the Board finds that the record raises a claim for TDIU. The issues of entitlement to service connection for residuals of a jaw injury, to include a dental condition, residuals of a cracked skull, entitlement to a rating higher than 30 percent for residuals of a fractured pelvis, and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. The Veteran's degenerative disc disease of the lumbar spine is causally or etiologically due to service. 2. The Veteran's cervical spine (neck) disorder is causally or etiologically due to service. 3. The Veteran's depression is proximately due to or aggravated by his service-connected disabilities. CONCLUSIONS OF LAW 1. Service connection for degenerative disc disease of the lumbar spine is established. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.309 (2013). 2. Service connection for a cervical spine (neck) disorder is established. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.309 (2013). 3. Service connection for depression, to include as secondary to service-connected disabilities, is established. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). In this case, the Board is granting in full the benefit sought on appeal. Consequently, the Board finds that any lack of notice and/or development, which may have existed under the VCAA, cannot be considered prejudicial to the Veteran, and remand for such notice and/or development would be an unnecessary use of VA time and resources. II. Service Connection Claims The Veteran seeks entitlement to service connection for degenerative disc disease of the lumbar spine and a cervical spine (neck) disorder. He asserts these claimed disorders are a result of a motor vehicle accident during service. The Veteran also seeks entitlement to service connection for depression, as secondary to his service-connected disabilities. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). 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) medical 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) medical 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 Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under the relevant laws and regulations, secondary service connection may be established when there is aggravation of a Veteran's non-service connected condition that is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439, 448 (1995); Tobin v. Derwinski, 2 Vet. App. 34, 39 (1991). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App 370, 374 (2002). In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit recently limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as "chronic diseases" in 38 C.F.R. § 3.309(a). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a headache, varicose veins, or tinnitus, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of psychiatric, respiratory, or orthopedic disorders. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). A. Entitlement to Service Connection for Degenerative Disc Disease of the Lumbar Spine The Veteran seeks entitlement to service connection for degenerative disc disease of the lumbar spine. He asserts he injured his lumbar spine during a motor vehicle accident in service. Service records were reviewed. The Veteran's treatment records indicate he was involved in a motor vehicle accident in May 1976, where he suffered serious injuries to the pelvis and spleen. See July 1976 DA Form 2173. In August 1984, the Veteran sought treatment for soreness in his lower back. There was no tenderness noted, no redness, or edema. At the time, he was assessed with a possible strain. Post-service, private medical records indicate the Veteran was diagnosed with mild degenerative changes in the discs at T12-L1, L3-4, and L5-S1 in February 2005. The Veteran underwent an interval unilateral right-sided posterior fusion from L4 through S1 in 2008. The Veteran was afforded a VA examination in February 2009. The Veteran's motor vehicle accident during service was noted as well as the August 1984 possible lumbar strain. After examination, the Veteran was diagnosed with degenerative disc disease at L4-L5, posterior spondylosis in the lower lumbar spine, mild degenerative changes in the discs at T12-L1, L3-4, L5-S1, and severe central stenosis L4-5 with moderate size left and large right paracentral disc herniation. The examiner opined that the Veteran's current lumbar disorders are less likely as not caused by or a result of the Veteran's back condition during service. The examiner noted that the back strain reported during service in August 1984 was not severe enough to result in the development of the degenerative disc disease the Veteran has currently. No medical opinion was given regarding whether the Veteran's current lumbar disorder was due to the motor vehicle accident during service. In July 2009, the Veteran's private physician submitted a statement. The physician noted that the Veteran had complaints of low back pain since January 2005 and that a magnetic resonance image (MRI) completed in February 2005 demonstrated severe spinal stenosis due to a large herniated disk at L4-5. The physician stated that this disorder did not happen suddenly, that the Veteran's degeneration at the disk level had been worsening for many years, and considering the nature of the Veteran's injuries in his 1976 car accident, the low back disorder likely began after the accident. The physician stated the Veteran had complained of low back pain since the car accident and trauma commonly induces disk herniation. The physician concluded his statement by indicating that the Veteran's degenerative disk disease should be included along with the other injuries suffered by the Veteran in the accident for purposes of disability. The Veteran's private physician submitted an additional statement in December 2011. The physician noted that the Veteran's low back problems began immediately after his 1976 active duty motor vehicle accident and gradually progressed over the years. The physician stated there is no doubt that the Veteran's problems began as a result of the active duty injury as no other significant trauma has occurred to the Veteran's spine since that accident. The physician opined that there is greater than fifty percent probability that the Veteran's back pain is related to the accident while on active duty. The Veteran was afforded a VA examination in October 2011. However, the Board finds this examination to be inadequate as the examiner stated that there were no entries in the file regarding treatment of a low back disorder while in service. As stated previously, the Veteran was treated for a possible low back strain in August 1984. Furthermore, the October 2011 VA examiner opined that the Veteran's current back disability is less likely as not secondary to or aggravated by the Veteran's pelvis as there is no nexus with which to link the two conditions. The Board finds this opinion to also be inadequate as the examiner did not fully explain the reasoning for this opinion. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. As such, the Board finds the Veteran is entitled to service connection for degenerative disc disease of the lumbar spine. The Veteran's treating physician has linked his current lumbar spine disorder to his time in service, specifically to the motor vehicle accident that occurred during service. Importantly, the Board notes that the February 2009 VA examiner failed to offer an opinion regarding whether the Veteran's lumbar disorder was due to the motor vehicle accident during service, and the October 2011 VA examiner failed to review the complete record, erroneously noting there was no treatment during service for a lumbar condition. As such, upon resolution of every reasonable doubt in the Veteran's favor, the Board determines that service connection is warranted for degenerative disc disease of the lumbar spine. B. Entitlement to Service Connection for a Cervical Spine (Neck) Disorder The Veteran seeks entitlement to service connection for a cervical spine disorder, claimed as a neck disorder. He asserts he injured his neck during a motor vehicle accident in service. Service records were reviewed. As noted previously, a motor vehicle accident resulting in serious injuries has been conceded. See July 1976 DA Form 2173. Importantly, a photograph from the hospital after the Veteran's accident shows icepacks surrounding the Veteran's neck. See photos submitted and July 2013 BVA Hearing Transcript, page 7. Post-service, private medical records indicate the Veteran underwent an MRI in January 2008, after complaining of neck pain. The MRI demonstrated left paracentral disc protrusion C3-4 with mild mass effect on the cord, mild central stenosis C4-5 with right C5 foraminal narrowing, and borderline central stenosis at C5-6 and C6-7. The Veteran had surgery in January 2008, an anterior fusion of C4 and C5. The Veteran's private physician submitted a statement in December 2011. The physician noted that the Veteran had cervical spine surgery in 2006, and that despite surgeries, the Veteran continues to suffer from chronic pain. The physician stated there is no doubt that the Veteran's problems began as a result of the active duty injury as no other significant trauma has occurred to the Veteran's spine since the motor vehicle accident. The physician opined that there is greater than fifty percent probability that the Veteran's neck pain is related to the accident while on active duty. The Board has considered the Veteran's arguments. The Veteran asserts he experienced cervical spine (neck) pain after the motor vehicle accident in service and continues to experiences this pain currently. The Board notes that the Veteran is competent to give evidence about what he experiences; for example, he is competent to discuss current pain and other experienced symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). Furthermore, lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The Board finds the Veteran's statements to be credible, as they are consistent with the available medical evidence of record. The Veteran's treating physician has linked his current cervical spine disorder to his time in service, specifically to the motor vehicle accident that occurred during service. Importantly, the Board notes that there are no medical opinions to the contrary regarding the Veteran's cervical spine disorder. As such, upon resolution of every reasonable doubt in the Veteran's favor, the Board determines that service connection is warranted for a cervical spine disorder. C. Entitlement to Service Connection for Depression, to Include as Secondary to Service-Connected Disabilities The Veteran seeks entitlement to service connection for depression. He asserts his depression is a result of his physical disabilities. Service records were reviewed. The Veteran's treatment records indicate he was involved in a motor vehicle accident in May 1976, where he suffered serious injuries to the pelvis and spleen. See July 1976 DA Form 2173. There was no diagnosis, treatment, or complaints of depression during service. VA outpatient notes indicate the Veteran is being treated for his depression. A November 2010 treatment note states the Veteran was in a severe motor vehicle accident in 1976 and injured his hip and back, resulting in multiple surgeries over the years, increased pain and decreased daily functioning over the years. The Veteran stated he used to be very active, worked full time, and was active with family and friends but could no longer do those things. The Veteran was assigned an Axis I diagnosis of mood disorder due to general medical condition (pain, back, and leg problems) and adjustment disorder with depressed mood. The Veteran has continued to seek individual mental health therapy with the VA. See VA treatment notes. The Veteran's treating psychologist submitted a note in September 2011. The note indicated that the Veteran had an Axis I diagnosis of mood disorder due to general medical condition (pain, back and leg problems), and adjustment disorder with depressed mood. The Veteran was afforded a VA examination in November 2011. The Veteran was diagnosed with depressive disorder, not otherwise specified (NOS). The examiner noted that the Veteran reported his depression began gradually as his pain became worse and has progressively gotten worse since his back surgery. The examiner stated the Veteran noted at the examination (as is consistent with his treatment notes) that the pain he experiences is related to his neck, back and leg problems. At the time, the examiner noted that the Veteran was not service connected for his back disorder, and the Veteran had noted that his depression stemmed mostly from back pain. Therefore, the examiner opined that the Veteran's depression was less likely than not secondary to his service connected disability of a fractured pelvis. The Veteran's private physician submitted a statement in December 2011. The physician stated the Veteran is on medication for depression, which is likely tied to the 1976 accident. See December 2011 letter by Dr. H. As stated previously, establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). The November 2011 VA examiner opined that the Veteran's depression was a result of his back and neck problems. The Board notes that as a result of this decision, the Veteran has been granted service connection for his lumbar spine disorder and cervical spine disorder. As both the Veteran's treating psychologist and November 2011 VA examiner have indicated the Veteran's depression is due to his pain and back problems that are a result of his accident during service, the Board finds the Veteran is entitled to service connection for depression, as secondary to his service-connected disabilities. As such, upon resolution of every reasonable doubt in the Veteran's favor, the Board determines that service connection is warranted for depression, on a secondary basis. ORDER Service connection for degenerative disc disease of the lumbar spine is granted. Service connection for a cervical spine (neck) disorder is granted. Service connection for depression, to include as secondary to service-connected disabilities, is granted. REMAND The Veteran seeks entitlement to service connection of residuals of a cracked skull, to include vertigo and labyrinithitis, entitlement to service connection for residuals of a jaw injury, to include a dental condition, entitlement to a rating higher than 30 percent for residuals of a fractured pelvis, and entitlement to TDIU. VA has a duty to assist a claimant in obtaining evidence; such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. The Board finds the duty to assist has not been met. To date, the Veteran has not yet been afforded a VA examination for his residuals of a cracked skull, or residuals of a jaw injury, to include a dental condition. The Veteran testified in July 2013 that he injured his jaw and suffered from a cracked skull during a motor vehicle accident in service. See July 2013 BVA Hearing Transcript, pages 24-26. Service treatment records confirm the Veteran was involved in a motor vehicle accident in service in May 1976. The Veteran indicated during the Hearing that he was treated in Germany at the time, and that much was lost in translation regarding his injuries. Additionally, the Veteran asserted during the hearing that due to his serious spleen injury, his other injuries, such as jaw and cracked skull, were not noted. Id. at Furthermore, the Veteran's private physician diagnosed the Veteran in April 2003 with recurrent labyrinithitis. The physician stated that the most likely cause of the Veteran's labyrinithitis might relate to a base of skull fracture that the Veteran sustained in 1976 and though it was not diagnosed at the time, it is quite common in severe head injuries. Additionally, in December 2011, a private physician opined that the Veteran chronic vertigo dated back to a fractured skull he obtained in the 1976 motor vehicle accident. Importantly, there are no medical records that document the Veteran suffered from a fractured skull during service, and the Veteran's private physicians do not include any rationale with their opinion pertaining to how they diagnosed the Veteran with a fractured skull. An October 2011 VA outpatient note indicates the Veteran's vertigo may be due to vestibular hypofunction. See October 2011 VA treatment note. As such, the Board finds a remand is necessary to afford the Veteran a VA examination and to obtain a medical opinion regarding the nature and etiology of the Veteran's claimed jaw injury and resulting dental condition as well as his claimed residuals of a skull fracture, to include vertigo and labyrinithitis. Additionally, during the July 2013 Hearing, the Veteran indicated he received dental treatment at Fort Hood, Texas. See July 2013 BVA Hearing Transcript, page 25. A remand is necessary to determine if there are any dental records that have not yet been obtained and if so, to obtain these records, and associate them with the claims file. The Veteran also seeks entitlement to an increased rating for his residuals of a fractured pelvis. The Board notes that the most recent VA examination for this disability was in October 2011, more than two years ago. The Board finds a remand is necessary to afford the Veteran a contemporaneous examination to determine the current severity of his disability. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). Finally, pertinent to a potential TDIU claim, as noted in the Introduction, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Rice, 22 Vet. App. at 453-54. While the Board has jurisdiction over this issue as part and parcel of the Veteran's increased rating claim, further development is necessary for a fair adjudication of the TDIU aspect of such claim. Evidence on file indicates that the Veteran has difficulty maintaining employment due to his service-connected disabilities. See July 2013 BVA Hearing Transcript, page 27. Upon remand, the AOJ is requested to afford the Veteran proper notice under the VCAA as related to a TDIU claim and should clarify whether he wishes to pursue this claim. In addition, the AOJ may decide to pursue further development of the Veteran's employment history, or to obtain additional medical evidence or a medical opinion, as is deemed necessary to develop the TDIU claim. After all appropriate development has been completed, the Veteran's TDIU claim should be adjudicated based on all evidence of record to include consideration of the provisions of 38 C.F.R. § 4.16(a) and (b), as applicable. Any updated treatment records should be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran with notice in compliance with the VCAA that informs him of what evidence he must show to support a claim for TDIU. The RO should also ascertain whether the Veteran wishes to pursue a TDIU claim. In the event that he does, further action as described herein should be taken. In the event that he does not, this fact should be annotated for the file and no further action is required. 2. Obtain and associate with the claims file all updated VA and private treatment records. 3. Obtain dental treatment records form Fort Hood, Texas. 4. All attempts to secure this evidence must be documented in the claims file. If the records are not obtainable, the RO must notify the Veteran and his representative and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; and (c) describe any further action to be taken by the RO with respect to the claim. The Veteran must then be given an opportunity to respond. 5. Afford the Veteran a VA examination for his residuals of a cracked skull, to include labyrinithitis and vertigo. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file. All current diagnoses should be noted (i.e., vertigo, labyrinithitis, and/or cracked skull). After the claims file is reviewed, for each diagnosed disorder, the examiner should offer comments and an opinion addressing whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that any residuals of a cracked skull, to include labyrinithitis and vertigo, are in any way causally or etiologically related to his active service, to include the documented motor vehicle accident during service. In particular, review the lay statements as they relate to the development of his disorder and provide information as to how the statements comport with generally accepted medical norms. The examiner must also offer comments and an opinion regarding the April 2003 and December 2011 private physician statements indicating the Veteran suffered from a cracked skull during service. If it is not possible to provide the requested opinion without resort to speculation, the examiner should state why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion or other information needed to provide the requested opinion. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The claims folder must be provided to the examiner for review. The examiner must state in the examination report that the claims folder has been reviewed. 6. Afford the Veteran a VA examination for his residuals of jaw injury, to include a dental condition. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file. All current jaw and dental disorders should be diagnosed. After the claims file is reviewed, for each diagnosed disorder, the examiner should offer comments and an opinion addressing whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that the Veteran's disorder is in any way causally or etiologically related to his active service, to include the documented motor vehicle accident during service. In particular, review the lay statements as they relate to the development of his disorder and provide information as to how the statements comport with generally accepted medical norms. If it is not possible to provide the requested opinion without resort to speculation, the examiner should state why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion or other information needed to provide the requested opinion. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The claims folder must be provided to the examiner for review. The examiner must state in the examination report that the claims folder has been reviewed. 7. Afford the Veteran a VA examination to determine the current severity of his residuals of a fractured pelvis. a) Ask the examiner to discuss all findings in terms of 38 C.F.R. § 4.71a, The Hip and Thigh (2013). The pertinent rating criteria must be provided to the examiner. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. b) All pertinent symptomatology and findings should be reported in detail. The examination report must include ranges of motion, with notations as to the degree of motion at which the Veteran experiences pain. c) Additionally, any neurological symptoms due to/aggravated by the pelvic disability should be noted and the severity of each described as mild, moderate, moderately severe, severe with marked muscular atrophy or indicate whether the Veteran has complete paralysis. The claims folder should be made available to the examiner for review in conjunction with the examination, and the examiner should acknowledge such review in the examination report. 8. After the above development has been completed, and if the Veteran wishes to pursue a claim for TDIU, schedule the Veteran for a VA examination to evaluate the impact his service-connected disabilities have on his employability. The examiner must review the claims file and should note that review in the report. The examiner must take a history of the Veteran's educational and employment background. The examiner should opine as to whether it is at least as likely as not (i.e. 50 percent or greater probability), less likely as not (i.e. less than 50 percent), or more likely than not (i.e. greater than 50 percent) that the Veteran's service-connected disabilities (residuals of a fractured pelvis, residuals of splenectomy, degenerative disc disease of the lumbar spine, a neck disability, and residuals of a crack skull to include labyrinithitis and vertigo), either singularly or jointly and without consideration of his nonservice-connected disabilities, render him unable to secure or follow a substantially gainful occupation. The examiner should consider such factors as the Veteran's education level, special training, and work experience. In offering any opinion, the examiner should consider all the evidence of record, to include the lay statements submitted by or on behalf of the Veteran. The rationale for any opinion offered should be provided. 9. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated. If the claims remain denied, the Veteran and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran 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). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs