Citation Nr: 1337640 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 96-47 697 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Entitlement to increases in the "staged ratings" assigned for a left hip disability (30 percent prior to January 27, 1998, and from April 1, 1999 to July 11, 2000, and from January 1, 2002 to December 15, 2003; 50 percent from March 1, 2005 to February 20, 2007, and from April 1, 2008 to October 23, 2008; and 30 percent from October 23, 2012). 2. Entitlement to increases in the "staged ratings" assigned for a right hip disability (30 percent prior to May 17, 1999, and from July 1, 2000 to June 26, 2011; and 50 percent from June 27, 2011). 3. Entitlement to a rating in excess of 20 percent for a lumbosacral strain with degenerative changes (a "low back disability"). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from February 1985 to December 1988. These matters are before the Board of Veterans' Appeals (Board) on appeal from June 1996 and subsequent rating decisions of the Waco, Texas RO. In January 1997, a Decision Review Officer hearing was held at the RO; a transcript of the hearing is included in the claims file. In September 2003, July 2009, August 2011, and January 2013, the case was remanded for additional development and to satisfy notice requirements. At various times during the appeal period the Veteran's hip disabilities have been rated 100 percent either under 38 CFR 4.30 (based on a need for convalescence) or under 38 CFR 4.71, Code 5054 (as a schedular rating provided for 1 year following implantation of a prosthesis). As the left hip disability was assigned the maximum rating possible during the periods of January 27, 1998 to March 31, 1999; July 12, 2000 to December 31, 2001; December 16, 2003 to February 28, 2005; February 21, 2007 to March 31, 2008; and October 24, 2008 to October 22, 2012, those periods are not for consideration herein. Likewise, as the right hip disability was assigned the maximum rating possible from May 17, 1999 to June 30, 2000, that period of time is not for consideration herein. As was explained in the August 2011 and January 2013 remands, the Veteran is pursuing these claims and this appeal pro se. A May 2013 rating decision granted a total disability rating based on individual unemployability (TDIU) from April 1, 2008 to May 1, 2008, and also incorrectly indicated that, as the Veteran was not awarded entitlement to TDIU benefits for the period prior to January 27, 1998, the claim "is still considered to be in appellate status and further processing will continue unless you advise us that you are now satisfied with this decision". Notably, the Board's January 2013 remand clearly advised the Veteran that the matter of entitlement to a TDIU rating prior to January 27, 1998 (and from April 1, 2008 to May 1, 2008) would only be before the Board if he perfected an appeal of a negative determination. As this has not occurred, the matter is not on appeal before the Board at this time. The matter of the ratings for a right hip disability is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if action on his part is required. FINDINGS OF FACT 1. Prior to March 1, 2005, the Veteran's left hip disability was not shown to be manifested by moderately severe residuals of weakness, pain or limitation of motion following implantation of a prosthesis; or flexion of the thigh limited to 10 degrees. 2. From March 1, 2005 to October 23, 2008, the Veteran's left hip disability was not shown to be manifested by markedly severe residual weakness, pain or limitation of motion following implantation of a prosthesis. 3. From October 23, 2012, the Veteran's left hip disability is reasonably shown to have been manifested by moderately (but not markedly) severe residuals of weakness, pain or limitation of motion following implantation of a prosthesis. 4. Prior to September 27, 2003, the Veteran's service-connected low back disability was not shown to be manifested by severe limitation of motion; severe disability characterized by recurring attacks with intermittent relief; or severe lumbosacral strain with listing of the whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in the standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. 5. At no time from September 27, 2003, is the Veteran's low back disability shown to have been manifested by limitation of thoracolumbar spine forward flexion to 30 degrees or less or by ankylosis of the spine; incapacitating episodes of disc disease and/or separately ratable neurological manifestations are not shown. CONCLUSIONS OF LAW 1. Ratings for the Veteran's left hip disability in excess of 30 percent prior to March 1, 2005, and/or in excess of 50 percent from March 1, 2005 to October 23, 2008 are not warranted; an increased (to 50 percent, but no higher) rating for the , left hip disability is warranted from October 23, 2012. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (Codes) 4.59, 4.71a, Codes 5010, 5054, 5250, 5251, 5252, 5253, 5254, 5255 (2013). 2. A rating in excess of 20 percent is not warranted for the Veteran's low back disability. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.21, 4.40, 4.45, 4.71a, Codes 5293 (in effect prior to September 23, 2002), 5292, 5293, 5295 (in effect prior to September 26, 2003), Codes 5237-5243 (effective September 26, 2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In a claim for increase, the VCAA requirement is generic notice, that is, 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). The appellant was advised of VA's duties to notify and assist in the development of the claims. While he did not receive complete notice prior to the initial rating decision, April 2001, March 2004, March 2006, July 2009, August 2011, and January 2013 letters provided essential notice prior to the readjudication of his claims. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). A January 2013 letter provided notice of what was needed to substantiate an increased rating claim and explained the evidence VA was responsible for providing and the evidence he was responsible for providing. A May 2013 supplemental statement of the case (SSOC) readjudicated the matters after the appellant was given an opportunity to respond. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (a VCAA timing defect may be cured by the issuance of fully compliant notification followed by readjudication of the claim). The Veteran's pertinent treatment records have been secured. The RO arranged for VA examinations in May 1996, March 1997, January 1999, January 2010, May 2010, and April 2013, which will be discussed in greater detail below, though the Board finds these examinations (cumulatively) to be adequate as they included both a review of the Veteran's history and a physical examination that included all necessary findings. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of these claims. Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, and in Virtual VA, with an emphasis on the evidence that is 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. See Gonzales v. West, 218 F, 3d, 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings." Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code, any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the veteran. 38 C.F.R. § 4.40. Left hip disability The RO has rated the Veteran's left hip disability under Code 5054 (for hip replacement, prosthetic replacement of the head of the femur or of the acetabulum) as the most appropriate Code. The Board finds that designation appropriate, and that an alternative rating under Codes 5010 or 5250 through 5255 would also be appropriate. Under Code 5054, the minimum rating is 30 percent for postoperative hip replacement. A 50 percent rating is warranted for moderately severe residuals of weakness, pain or limitation of motion. A 70 percent rating is warranted for markedly severe residual weakness, pain or limitation of motion following implantation of a prosthesis. A 90 percent rating is warranted following the implantation of a prosthesis with painful motion or weakness such as to require the use of crutches. A 100 percent rating is warranted for one year following the implantation of a prosthesis. 38 C.F.R. § 4.71a. Under Code 5251, a maximum 10 percent rating is warranted for extension of the thigh limited to 5 degrees. Under Code 5252, a 10 percent rating is warranted for flexion of the thigh limited to 45 degrees. A 20 percent rating is warranted for flexion of the thigh limited to 30 degrees. A 30 percent rating is warranted for flexion of the thigh limited to 20 degrees. A 40 percent rating is warranted for flexion of the thigh limited to 10 degrees. Under Code 5253, a 10 percent rating is warranted for limitation of rotation of the thigh, cannot toe-out the affected leg more than 15 degrees; a 10 percent rating is also warranted for limitation of adduction of the thigh, cannot cross legs. A 20 percent rating is warranted for limitation of abduction of the thigh, with motion lost beyond 10 degrees. Under Code 5010 (for traumatic arthritis substantiated by X-ray findings, rated as degenerative arthritis), a 10 percent (maximum) rating may be assigned for X-ray confirmed arthritis of a joint where there is limitation of motion/painful motion, but with limitation less than required for a 10 percent rating under the Code for evaluating the specific joint. Id. Consideration of other diagnostic codes for rating hip disability (5250, 5254, 5255) is inappropriate in this case as the Veteran's left hip disability does not include the pathology required in the criteria for those Codes (ankylosis, flail joint, or nonunion/malunion of the femur, respectively). 38 C.F.R. § 4.71a. [Notably, normal hip flexion is zero to 125 degrees, and hip abduction is zero to 45 degrees. 38 C.F.R. § 4.71a, Plate II.] The Veteran's claim for an increased rating was received in February 1996. The relevant period for consideration in this appeal begins one year prior to that submission (i.e., in February 1995). There is no medical evidence of record regarding the status of the Veteran's left hip disability from February 1995 to January 1996. In a January 1996 statement, treating physician Dr. Berry stated that the Veteran had severe degenerative joint disease of the hips, worse in the left, and was in constant pain. Dr. Berry opined that the Veteran should have a hip replacement. On January 1996 private treatment, the Veteran reported difficulty with both hips, more so on the left. He reported popping and problems getting up and down; he felt more comfortable standing than sitting. He had taken a multitude of medications with little if any response. He continued to work but with a great deal of difficulty. On physical examination, he walked very stiffly and awkwardly. He got up and down slowly and guardedly. He had significant restriction of movement of both hips with more pain on the left. Dr. Renshaw opined that in spite of the Veteran's young age, at that time a total hip joint was basically the only option; replacing the left hip would give some relief and take the stress off of the right hip. On May 1996 VA examination, the Veteran was noted to have degenerative joint disease/arthritis of the hips. He walked with a normal gait and a level pelvis. He had 15 degrees of abduction in the hips and 40 degrees of flexion in the hips, with complaints of pain. X-rays of the hips showed bilateral degenerative hip joint changes with thinning of the weight-bearing portion of the hips and periarticular osteophytes. The diagnoses included arthritis in hips. At a January 1997 RO hearing, the Veteran testified that he had problems walking, sitting, and standing due to his left hip. He was unable to bend over but could lean down slightly. He experienced a lot of swelling in the hip almost every day. On March 1997 VA examination, the Veteran demonstrated dramatic overt pain behavior with guarding, bracing, rubbing, grimacing, and sighing throughout the examination. He walked with a very peculiar gait and short steps. He was able to undress and redress himself. He would only squat about 20 percent yet he was able to sit down in a chair, which meant he could squat at least 50 percent. He was able to sit upright with his hips flexed 90 degrees. He had widespread nonanatomical tenderness; the examiner could not demonstrate any evidence of myotomal muscle atrophy or weakness or disuse nor any evidence of anatomical dermatomal or sensory deficits. The Veteran flexed both hips to 100 degrees and abducted both 40 degrees; he would not adduct the hips beyond zero or internally rotate the hips at all; they would both externally rotate to 45 degrees but the Veteran would only bring them back to about a position of 20 degrees of external rotation. The impressions included chronic pain syndrome, and degenerative joint disease in the hips bilaterally reported by history and shown on X-ray. In January 1998 the Veteran underwent a left total hip replacement. He was assigned a temporary 100 percent rating from January 27, 1998 to April 1, 1999. As noted above, this time period is not before the Board. On January 1999 VA examination, the Veteran was noted to have had an excellent response to total replacement of the left hip. The impressions included bilateral femoral head necrosis, and status post total left hip replacement. May 2000 X-rays of the left hip showed no fractures or dislocations. X-rays of the left femur showed loosening of the shaft of the prosthesis and the acetabula of the cup of the prosthesis. In July 2000 the Veteran underwent a left total hip revision and a in November 2000 he underwent closed reduction to repair a left hip dislocation. A temporary total 100 percent rating was assigned from July 12, 2000 to December 31, 2001. As is noted above, this time period is not before the Board. February 2002 X-rays of the left hip showed status post total left hip prosthetic replacement with distal shank of the prosthesis apparently well seated within the proximal femoral shaft and acetabular cup well fixed to the pelvic innominate. There was no evidence of dislocation. The evidence indicates that the Veteran underwent a left hip surgery in December 2003; he was assigned a temporary 100 percent rating from December 16, 2003 to February 28, 2005. As noted above, this time period is not before the Board. Following this period of temporary total rating, the left hip disability was assigned a 50 percent rating. On May 2005 VA treatment, the Veteran reported ongoing and residual symptoms into the left hip area and the proximal portion into the thigh and groin. He noticed a grinding sensation. His hip range of motion was mildly decreased but there was guarding. A review of recent X-rays compared to previous ones showed no significant change although there was a cortical change in the third through fifth wires laterally; there was no significant change in the acetabular area. The left lower extremity was neurologically intact. On June 2005 VA treatment, the Veteran reported that his recurrent left hip pain had resolved. He stated the pain was more on the inner thigh down the femur, specifically with muscle contraction; but he was doing better and had lost some weight. On physical examination, the surgical scar was well healed and he was neurovascularly intact distally. He could maintain abduction against resistance although it was weaker than the right leg. He had good range of motion without pain, hip flexion was to 90 degrees, internal rotation to 20 degrees, and external rotation to 20 degrees. X-rays showed a revision prosthesis in place with cables; distally between the 4th and 5th cables; there appeared to be a healed unicortical fracture, and possible osteolysis in the acetabulum. The impression was status post hip replacements and subsequent revision on the left with resolved left hip pain. On April 2006 VA treatment, the Veteran reported chronic left hip pain. He described an aching pain that increased with activity and decreased with rest, controlled with ibuprofen and soma. On physical examination, there was tenderness and restricted motion of the left hip. The assessments included degenerative joint disease. On June 2006 VA treatment, the Veteran reported continued pain in the left thigh and occasionally in his groin area. On physical examination, he ambulated without an assistive device. The left hip was nontender to palpation. Hip flexion was to approximately 85 degrees. He had slight weak abductors compared to the right side. X-rays of the left hip showed hardware in place with multiple cables and some osteolysis around the proximal femur and acetabulum. The impression was status post hip replacement with two revisions to the left hip and thigh pain. On August 2006 VA treatment, the Veteran reported symptoms of left hip pin and loosening; he stated that he could feel the prosthesis shift within the bone when he would sit and stand. He complained of significant shortening on the left side. A bone scan was positive for loosening of the left hip. He was to be scheduled for left hip revision surgery. In February 2007 the Veteran underwent a left hip revision surgery; a temporary 100 percent rating was assigned from February 21, 2007 to March 31, 2008. As noted above, this time period is not before the Board. On December 2007 VA treatment, the Veteran was 10 months status post left total hip arthroplasty revision and noted to be very happy with the results. He reported only occasional distal thigh pain and occasional tightness. He was exercising more with swimming which was very helpful. On physical examination, there was no tenderness to palpation or edema. The left lower extremity was neurovascularly intact. He had satisfactory range of motion, with approximately 90 degrees of flexion, 40 degrees of abduction, 20 degrees of internal rotation, and 40 degrees of external rotation. X-rays showed hardware in place with no evidence of loosening. On June 2008 VA treatment, the Veteran's post-operative care was completed but he was still complaining of osteoarthritis pain. He was very happy with his left hip revision. Overall he reported nonspecific spasm and pain in both thighs and legs. On physical examination of the left hip, range of motion was normal, there was no tenderness to palpation, and he was neurovascularly intact distally. He was noted to be doing well. In October 2008, the Veteran underwent surgery to address left hip hardware failure; he was hospitalized for infection in December 2008 and again in January 2009; he underwent a hip aspiration in February 2009; and he underwent a revision of the acetabular component of a total hip replacement in March 2009. On January 2010 VA examination, the Veteran reported daily pain in the left hip. He used a cane for assistance. He had decreased range of motion. He was not receiving active physical therapy, although he tried to do home exercises. He took ibuprofen and hydrocodone for pain. He reported no flare-ups as it was a constant pain. He had no incoordination but he reported marked fatigue and lack of endurance; he could be up for no more than an hour and then he had to rest. He reported very limited driving and very limited work around his home. There was no current active infection. The examiner noted an August 2009 X-ray which showed a total hip arthroplasty with unremarkable position. On physical examination, there was some tenderness on compression of the hip area. He could flex to 45 degrees, abduct to 35 degrees, adduct to 20 degrees, and extend to 40 degrees with mild pain. There was no change in range of motion, coordination, endurance, fatigue, or pain level with repetitive motion. The impressions were total hip replacement of the left hip with decreased range of motion and infected prosthesis with active antibiotic treatment, and chronic pain secondary to total left hip replacement. On December 2010 VA treatment, the Veteran reported being in no pain and was very talkative about his exercise program. On June 2011 VA treatment, the Veteran reported constant aching pain of the lower back and hips, increased by standing, walking, not getting enough rest, and being on his legs for too long. On December 2011 VA treatment, left hip flexion was to 110 degrees, internal rotation was to 15 degrees, and external rotation was to 40 degrees. X-rays were noted to show abnormal labeled leukocyte accumulation in the bilateral inguinal and external iliac lymph nodes suggestive of an inflammatory process; a similar pattern of uptake was seen on prior infectious imaging from October 2009. A temporary total (100 percent) rating was assigned from October 24, 2008 to October 22, 2012. As is noted above, this time period is not before the Board. Following this period of temporary total rating, the left hip disability was assigned a 30 percent rating. On April 2013 VA examination, the diagnoses included bilateral degenerative joint disease of the hips as well as fracture of other and unspecified parts of the left femur. He reported constant pain but usually, about once per day, he would move the wrong way and have severe pain for about one hour. On physical examination, left hip flexion was to 45 degrees with objective evidence of painful motion beginning at 5 degrees. Left hip extension was to 0 degrees with objective evidence of painful motion at 0 degrees. Abduction was lost beyond 10 degrees, and adduction was limited such that he could not cross his legs. Rotation was limited such that he could not toe-out more than 15 degrees. The Veteran reported that it was too painful to attempt repetitive-use testing; he was sweating and grimacing at the time. He had less movement than normal, weakened movement, excess fatigability, pain on movement, swelling, disturbance of locomotion, and interference with sitting, standing, and/or weight-bearing after repetitive use. He did not have localized tenderness or pain to palpation for the joints or soft tissue of the hip. On muscle strength testing, he had active movement against gravity on flexion, abduction, and extension of the hip. There was no ankylosis of the hip joint. There was no malunion or nonunion of the femur, flail hip joint, or leg length discrepancy. He had a history of total left hip joint replacement, and he had an unsteady gait and grimaced while walking; he had no residual signs and/or symptoms due to the hip surgeries. He regularly used a cane to assist with ambulation due to his bilateral hip disability, and he occasionally used a walker when he felt unsteady due to his bilateral hip disability. Arthritis was noted on left hip X-ray. Due to his hip disabilities, the Veteran could not sit on a hard surface at all, and he required frequent breaks to walk and/or sit. He could not bend, squat, stoop, or carry any additional weight. The examiner opined that it is unlikely the Veteran would be able to engage in sedentary employment. Additional VA and private treatment records through May 2013 show symptomatology largely similar to that found on the VA examinations described above. While the Veteran has reported chronic pain and left hip difficulties, at no time prior to March 1, 2005 (following the December 16, 2003 to February 28, 2005 temporary total rating period) was there definitive evidence of moderately severe residuals of weakness, pain or limitation of motion following implantation of a prosthesis (so as to warrant a 50 percent rating under Code 5054), nor was there flexion of the hip/thigh limited to 10 degrees (so as to warrant a 40 percent rating under Code 5252), even when taking into account additional loss of motion due to pain, fatigue, weakness, or lack of endurance, on repetitive use. As the symptoms and associated impairment of function of the left hip disability prior to March 1, 2005 fell squarely within the parameters of the criteria for the 30 percent rating assigned under Code 5054, and never met (or approximated) the criteria for the next higher (50 percent) rating under that Code, a rating in excess of 30 percent clearly was not warranted. However, it is reasonably shown that from October 23, 2012 the left hip disability has been manifested by moderately (but not markedly) severe residuals of weakness, pain or limitation of motion following implantation of a prosthesis, warranting a 50 percent (but no higher) rating from that date (a temporary total rating was assigned for approximately 4 years prior). In assigning the 50 percent rating the Board finds particularly significant the restriction of motion due to pain found on April 2003 VA examination. At no time during the evaluation period remaining under consideration is there evidence of markedly severe residual weakness, pain or limitation of motion following implantation of a prosthesis. The Board notes that temporary total ratings were assigned for the periods when recovery from surgery was incomplete. Significantly, the symptoms and associated impairment of left hip function shown from March 1, 2005 to October 23, 2008 fall squarely within the parameters of the criteria for the 50 percent rating assigned, and never meet (or approximate) the criteria for the next higher (70 percent) rating under Code 5054. Furthermore, the record does not include any evidence of a distinct period of time when the symptoms of the Veteran's left hip disability exceeded what is encompassed by the 30 percent and 50 percent ratings assigned, and therefore a further "staged" increased rating is not warranted. The preponderance of the evidence is against this claim; therefore, the appeal in the matter must be denied. Low back disability The RO has evaluated the Veteran's service-connected low back disability under Code 5237 as lumbosacral strain with degenerative changes, consistent with the diagnosis on VA examination. Inasmuch as there is a specific diagnostic code for intervertebral disc syndrome (Code 5243) which is also diagnosed, and because that code provides for rating under alternate criteria in addition to those for rating degenerative joint disease, and thus is potentially more favorable, the Board finds that the proper code for rating the Veteran's low back disability is Code 5243. Intervertebral disc syndrome is rated either under the General Rating Formula for Diseases and Injuries of the Spine (General Formula) 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 under 4.25. 38 C.F.R. § 4.71a, Code 5243. During the pendency of the Veteran's appeal, VA promulgated new regulations for the evaluation of intervertebral disc syndrome, 38 C.F.R. § 4.71a, Code 5293, effective September 23, 2002. See 67 Fed. Reg. 54,345 (Aug. 22, 2002). Later, VA promulgated new regulations for the evaluation of the remaining disabilities of the spine, effective September 26, 2003. See 68 Fed. Reg. 51,454 (Aug. 27, 2003). The amendments renumber the diagnostic codes and create a general rating formula for rating diseases and injuries of the spine, based largely on limitation or loss of motion, as well as other symptoms. When amended regulations expressly state an effective date and do not include any provision for retroactive applicability, application of the revised regulations prior to the stated effective date is precluded. 38 U.S.C.A. § 5110(g); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997); VAOPGCPREC 3-2000. Therefore, as each set of amendments discussed above has a specified effective date without provision for retroactive application, neither set of amendments may be applied prior to its effective date. As of those effective dates, the Board must apply whichever version of the rating criteria is more favorable to the Veteran. The previous version of the rating criteria provided: Under Code 5292, limitation of motion of the lumbar spine is assigned a 20 percent rating for moderate limitation of motion, and a maximum schedular rating of 40 percent for severe limitation of motion. The Board observes that the words 'slight', 'moderate', and 'severe' are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are 'equitable and just'. 38 C.F.R. § 4.6. It should also be noted that use of terminology such as 'severe' by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. Rather, it is the Board's responsibility to evaluate all the medical evidence and determine the appropriate rating that would compensate the Veteran for impairment in earning capacity, functional impairment, etc. 38 C.F.R. §§ 4.2, 4.6. The criteria under Code 5292 were less defined than the current criteria and numerical ranges of motion were not provided in the prior rating. In adopting specific ranges of motion to define what is normal (with the regulation revision), VA stated that the ranges of motion were based on the American Medical Association Guides to the Evaluation of Permanent Impairment, 2nd ed., (1984), which is the last edition of the Guides that measured range of motion of the spine using a goniometer. See supplementary information, 67 Fed. Reg. 56,509 (Sept. 4, 2002). Under Code 5293, when disability from intervertebral disc syndrome is moderate, with recurring attacks, a 20 percent evaluation is warranted. A 40 percent rating is in order when disability is severe, characterized by recurring attacks with intermittent relief. A maximum schedular rating of 60 percent is awarded when disability from intervertebral disc syndrome is pronounced, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, with little intermittent relief. Under Code 5295, a 10 percent rating is assigned for lumbosacral strain with characteristic pain on motion. If there is lumbosacral strain with muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in the standing position, a 20 percent rating is in order. A 40 percent (maximum schedular) rating is warranted when lumbosacral strain is severe, with listing of the whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in the standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. The amended version of the rating criteria provides: Lumbosacral or cervical strain is evaluated under Code 5237, and intervertebral disc syndrome is evaluated under Code 5243. The general rating formula provides for the following disability ratings for diseases or injuries of the spine, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. It applies to Codes 5235 through 5243, unless the disability rated under Code 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. For purposes of this case, the Board notes that under the general rating formula for diseases and injuries of the spine, ratings are assigned as follows: A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, with combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, with 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 warranted when forward flexion of the thoracolumbar spine is limited to 30 degrees or less; or with favorable ankylosis of the entire thoracolumbar spine; A 50 percent rating is warranted 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. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 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 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 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. 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). For purposes of rating under 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, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 1. [As no episodes requiring bed rest prescribed by a physician and treatment by a physician are shown in the instant case, further discussion of the criteria for rating based on incapacitating episodes is not necessary.] Diagnostic Code 5003, for degenerative arthritis, provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (Diagnostic Code 5200, etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. The Veteran's claim for an increased rating was received in February 1996. The relevant period for consideration in this appeal begins one year prior to that submission (i.e., in February 1995). There is no medical evidence of record regarding the status of the Veteran's low back disability from February 1995 to May 1996. On May 1996 VA examination, the Veteran was noted to have lumbosacral strain with degenerative disc disease. He walked with a normal gait and a straight spine. He had a positive straight and cross leg examination bilaterally, and he could not sit up with the legs fully extended. Forward flexion was to 45 degrees, extension was to 20 degrees, lateral flexion was to 35 degrees bilaterally, and lateral rotation was to 35 degrees bilaterally. X-rays of the lumbar spine showed curvature and alignment within normal limits, vertebral bodies and disc spaces were maintained, S1 spina bifida, lumbar posterior arches appeared intact, and the articular cortex of the sacroiliac joints was indistinct but unchanged when compared with earlier sacroiliac joint films. The diagnoses included lumbosacral strain with degenerative joint disease. At a January 1997 RO hearing, the Veteran testified that he was not able to sit in a car seat for long periods of time or just sit without pain. He could not stand for very long without pain. He had tried several types of back braces and medications with some relief. On March 1997 VA examination, the Veteran reported chronic constant lower back pain that was severe and unrelenting. He was taking Vicodin and Indocin. On physical examination, he walked with a peculiar gait and with short steps. He had widespread nonanatomical tenderness. Supine distracted straight leg raises were done easily to 90 degrees bilaterally; attempts to perform straight leg raising in the supine position produced severe pain at about 45 degrees. The examiner noted that since the Veteran dramatized his symptoms, range of motion studies were not ratable, because ranges of motion were performed voluntarily and the Veteran could voluntarily inhibit the ranges of motion at any degree he wanted; in patients who exhibit chronic pain behaviors, attempts to do passive ranges of motion will frequently result in claims of injury from the attempted motions, so all motions were done actively on the Veteran's part. Lumbar flexion was to 20 degrees, extension was to 0 degrees, lateral lumbar flexion was to 10 degrees to the left and 10 degrees to the right. Rotation was to 20 degrees bilaterally. A January 1997 MRI scan showed a small to moderate sized right pericentral disc herniation at the L5/S1 level with likely deviation and/or elevation of the transverse right first sacral nerve root. X-rays of the lumbar spine were within normal limits. The impressions included chronic pain syndrome, and degenerative joint disease and herniated lumbar disc reported on X-rays and prior MRI scans. The examiner opined that the Veteran demonstrated severe chronic pain syndrome which inhibited an examination which is reliable for rating purposes; the examiner opined that back surgery would have no chance of improving the Veteran's condition but in all likelihood it would enhance his maladaptive behavior. A March 1997 MRI of the lumbar spine showed significant disc desiccation at L5-S1 without loss of disc height and a right-sided posterior disc protrusion extending centrally to posterolaterally on the right side with mild indentation of the thecal sac in contact with traversing nerve roots. The evaluating physician opined that the Veteran's reported pain was clearly coming from the L5-S1 level, and the suggested surgical procedure would be a one level interbody fusion. On August 1997 private treatment, the Veteran complained of low back pain. He stated that he had been injured on the job in January 1996: he was trying to weld a welding rod together when a forklift backed up into the rod and forced him to flip over. On physical examination, range of motion testing showed good movement functionally but it was very limited on testing. He was unable to accomplish straight leg raising due to pain at about 30 degrees on the right and 15 to 20 degrees on the left. The impressions included lumbar discogenic pain status post lumbar sprain. On January 1999 VA examination, the Veteran was noted to have degenerative joint and disk disease of the lumbosacral spine, which caused considerable pain. He could only stand or sit while driving for about 30 minutes. On physical examination, he showed extreme guarding so that normal examinations were not meaningful. He could lie flat on his back and sit up but he could not sit up straight on the examining table and had to lean back. He could not do any cross leg maneuvers. He had an extreme degree of functional impairment due to pain which was manifested by muscle spasm in the paraspinous muscles of the lumbosacral spine and in the gluteal muscles, which would also give him weakened movement and lack of endurance. Straight leg raising was negative in the left leg in the sitting position, but this was not a meaningful examination because he did not sit up straight. X-rays of the lumbar spine were within normal limits except for straightening of the lumbar lordotic curvature which could be due to muscle spasm or positioning. The impressions included status post lumbosacral strain, and joint and disk degeneration in the lumbosacral spine and a strong suspicion of disk herniation. The examiner opined that the Veteran had been totally disabled since about 1991, when he quit working; he stated that he worked in a meat processing plant but could not tolerate the cold temperature as it aggravated his pain. On August 2004 VA treatment, the Veteran complained of sharp intermittent right lower back pain. It was discovered on physical examination that his lower extremities were of different lengths, and he was issued shoe inserts. X-rays of the lumbar spine showed minimal degenerative changes and the bones appeared intact. The alignment of the vertebral bodies and disk spaces was unremarkable. There was a suggestion of mild arthritis in the right sacroiliac joint, and there was arthritis of the facets in the lower lumbar spine. An April 2009 discogram of the lumbar spine showed a mild scoliosis of the lumbar spine concave to the right, most likely due to spasm. No other significant lumbar spine abnormality was seen. On May 2010 VA examination, the Veteran reported a long history of lower back pain, which he stated had increased as his left hip problem had improved. He reported no relief on taking ibuprofen (three times per day). He took hydrocodone for his hip, and his back improved slightly with he took it, however he had an undesirable side effect with this medication. He reported no periods of flare-up. He noted constipation but no bowel or bladder incontinence or numbness or weakness due to his back. He used no assistive device for his back. He was unemployed due to his hip condition but not due to his back. He reported no incapacitating episodes in the previous 12 months. On physical examination, the Veteran had an antalgic gait with a cane. He was tender in the lumbar paraspinous musculature with tightness but not true spasm. Forward flexion was 0 to 90 degrees with pain. Extension was to neutral with pain. Right and left lateral rotation could not be accomplished due to pain. Right and left lateral flexion were each 0 to 10 degrees with pain throughout. Straight leg raising was negative to 90 degrees in the sitting position bilaterally. Motor strength was normal in both lower extremities, and sensation was intact to sharp and dull testing. Reflexes were 1+ in the knees and absent in the ankles bilaterally. There were no additional limitations following repetitive use as there was no repetitive motion due to pain. There was no effect of incoordination, fatigue, weakness, or lack of endurance on the spine function as the Veteran was not able to do repetitive motion due to pain. The diagnosis was myofascial lumbar syndrome secondary to prior lumbosacral strain. On June 2010 VA treatment, the Veteran reported increased back pain and spasms since the most recent hip surgery. On December 2010 VA treatment, the Veteran reported being in no pain and was very talkative about his exercise program. On June 2011 VA treatment, the Veteran reported constant aching pain of the lower back and hips, increased by standing, walking, not getting enough rest, and being on his legs for too long. On August 2011 VA treatment, the Veteran complained of pain and spasms in the back causing pains down into the right hip, and causing difficulty walking or resting. He stated that ibuprofen no longer affected him, hydrocodone did not seem to be working any longer, and cyclobenzaprine just made him sleepy. He received a toradol pain shot. On January 2012 VA treatment, the Veteran complained of low back pain. Lumbar spine X-rays showed grade 1 spondylolisthesis at the L4-L5 level due to degeneration of the L4-L5 disc. There was no pars interarticularis defect at L4 causing spondylolisthesis. Degenerative changes were seen at L5-S1 facet joints bilaterally. The sacroiliac joints appeared normal. There was bilateral hip replacement A January 2012 MRI of the lumbar spine showed an annular tear and a disc protrusion at the L5-S1 level with bilateral neural foraminal narrowing, and small disc protrusion and right neural foraminal narrowing at L4-5. On April 2013 VA examination, the diagnoses included lumbar intervertebral disc without myelopathy, lumbosacral osteoarthrosis, and lumbosacral strain. The Veteran reported that when he is on his feet for longer than 15 minutes, his back starts to hurt moderately; he reported always having mild pain in his back. On physical examination, forward flexion was to 70 degrees with objective evidence of painful motion beginning at 35 degrees. Extension was to 30 degrees or greater with no objective evidence of painful motion. Right and left lateral flexion were each to 30 degrees or greater with no objective evidence of painful motion. Right and left lateral rotation were each to 30 degrees or greater with no objective evidence of painful motion. On repetitive-use testing, forward flexion was to 70 degrees, extension was to 30 degrees, right and left lateral flexion were each to 30 degrees, and right and left rotation were each to 30 degrees. On repetitive use, the Veteran had less movement than normal, excess fatigability, pain on movement, disturbance of locomotion, and interference with sitting, standing, and/or weight-bearing. There was no localized tenderness or pain to palpation. There was no guarding or muscle spasm. On muscle strength testing, hip flexion bilaterally had active movement against gravity, knee extension and ankle plantar flexion and ankle dorsiflexion all had active movement against some resistance bilaterally, and great toe extension was normal bilaterally. There was no muscle atrophy. Deep tendon reflexes were all normal. Sensory exam testing was normal except for decreased sensation to light touch of the left lower leg/ankle and foot/toes. The Veteran was unable to perform straight leg raising. The Veteran had no radicular pain or any other signs or symptoms of radiculopathy, nor any neurologic abnormalities related to the spine disability such as bowel or bladder problems or pathologic reflexes. He reported having incapacitating episodes due to intervertebral disc syndrome of the thoracolumbar spine with a total duration at least 6 weeks over the previous 12 months. He used a cane occasionally due to his bilateral hip disability. The examiner noted that arthritis of the thoracolumbar spine was documented by X-ray findings, but there was no vertebral fracture or other significant diagnostic test findings. The examiner opined that the Veteran's lumbar spine disability impacted his ability to work as he could not sit on a hard surface at all, he required frequent breaks to walk and/or sit, and he could not bend, squat, stoop, or carry any additional weight. The examiner opined that the Veteran's lumbar arthritis is likely caused or aggravated by his service-connected lumbosacral strain with degenerative changes. Additional VA and private treatment records through May 2013 show symptomatology largely similar to that found on the VA examinations described above. Under the old criteria, a rating in excess of 20 percent is not warranted prior to September 27, 2003, because limitation of motion was not shown to be severe; there was no evidence of a severe disability characterized by recurring attacks with intermittent relief; nor was there evidence of severe lumbosacral strain with listing of the whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in the standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. [Normal flexion is to 90 degrees and normal extension is to 30 degrees.] On May 1996 VA examination, forward flexion was to 45 degrees, extension was to 20 degrees, and lateral flexion and rotation were each to 35 degrees bilaterally. On March 1997 VA examination, the examiner noted that since the Veteran dramatized his symptoms, the range of motion studies were not ratable; however, X-rays of the lumbar spine were within normal limits. On January 1999 VA examination, the Veteran showed extreme guarding so that normal examinations were not meaningful; however, X-rays of the lumbar spine were within normal limits except for straightening of the lumbar lordotic curvature which could be due to muscle spasm or positioning. The Board must find that when applying the old criteria to the Veteran's low back disability, there is no competent medical evidence to warrant a rating in excess of 20 percent prior to September 27, 2003. As the symptoms and associated impairment of function of the low back disability prior to September 27, 2003 fall squarely within the parameters of the criteria for the 20 percent rating assigned, and never meet or approximate the criteria for the next higher (40 percent) rating, a rating in excess of 20 percent under the old rating criteria is clearly not warranted for that time period. Turning to the revised criteria, at no time from their effective date has there been evidence of forward flexion of the thoracolumbar spine limited to 30 degrees or less, nor is there any evidence of ankylosis of the entire thoracolumbar spine. On May 2010 VA examination, forward flexion was 0 to 90 degrees with pain. On December 2010 VA treatment, the Veteran reported being in no pain and was very talkative about his exercise program. On April 2013 VA examination, forward flexion was to 70 degrees with objective evidence of painful motion beginning at 35 degrees; on repetitive-use testing, forward flexion was to 70 degrees. As the symptoms and associated impairment of function of the low back disability fall squarely within the parameters of the criteria for the 20 percent rating assigned, and never meet (or approximate) the criteria for the next higher (40 percent) rating under the General Formula, a rating in excess of 20 percent under the General Formula criteria is clearly not warranted. As is noted above, lumbosacral disc disease may be alternatively rated based on incapacitating episodes. While the Veteran reported on April 2013 VA examination that he has had incapacitating episodes of at least six weeks in total duration in one year, there is no evidence (and the Veteran does not allege otherwise) that he has ever been placed on bedrest prescribed by a physician for his low back disability. Therefore, there is no basis for rating the disability based on incapacitating episodes. Neurological manifestations of lumbosacral disc disease are separately rated under an appropriate Code (and such rating is to then be combined with the rating under the General Formula). The Board notes the Veteran's reports that he has experienced pain radiating down into the lower extremities. However, on VA examinations, neurologic evaluation were consistently normal, there was no evidence of radiculopathy; neurological manifestations were not noted or alleged. Therefore, a separate rating for neurological manifestations is not warranted. The preponderance of the evidence is against this claim; therefore, the appeal in the matter must be denied. The Board has considered whether either of these matters warrants referral to the Chief Benefits Director or the Director, Compensation and Pension Service for consideration of an extraschedular rating under 38 C.F.R. § 3.321. In Thun v. Peake, 22 Vet. App. 111 (2008), the U.S. Court of Appeals for Veterans Claims (Court) explained the analytical steps necessary to determine whether referral for extraschedular consideration is warranted: It must first be determined whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. If the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Here, the symptoms of, and impairment of function resulting from, the Veteran's service-connected left hip disability fall squarely within the criteria for the 30 percent and 50 percent schedular ratings assigned; similarly, the symptoms and impairment resulting from the Veteran's low back disability fall squarely within the criteria for the 20 percent schedular rating assigned. The record does not reflect (or suggest) any symptoms/impairment of these disabilities not encompassed by the schedular criteria. Therefore, those criteria are not inadequate, and referral for extraschedular consideration is not warranted. Notably, the Veteran has already been granted a TDIU rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER Ratings for a left hip disability in excess of 30 percent prior to January 27, 1998, from April 1, 1999 to July 11, 2000, from January 1, 2002 to December 15, 2003 and/or in excess of 50 percent from March 1, 2005 to February 20, 2007, or from April 1, 2008 to October 23, 2008 are denied; a 50 percent (but no higher) increased rating is granted for the left hip disability from October 23, 2012, subject to the regulations governing payment of monetary awards. A rating in excess of 20 percent for low back disability is denied. REMAND Because this matter was prematurely returned to the Board following the January 2013 remand (and not all action sought was completed), it must again be remanded. In the January 2013 remand, the Board noted that there appeared to be outstanding records of private treatment that are pertinent to the right hip disability on appeal. Specifically, the Board noted that VA treatment records reflect that the Veteran underwent right hip surgery at Baylor Hospital in March 2012. The Board noted that he sought non-VA surgical treatment, as indicated on several March 2012 VA treatment reports. The Board found that the complete clinical records relating to the March 2012 surgery (all pre-surgical evaluations/consultations, complete records pertaining to the surgery, and the records pertaining to any post-surgical convalescence) were not associated with the claims file, and noted on remand that they are pertinent/critical evidence that must be secured. The Veteran was to be reminded of the provisions of 38 C.F.R. § 3.158(a). (The RO was also instructed to arrange for any further development indicated by the Veteran's response and any new records received.) By a January 21, 2013 letter to the Veteran, the RO implemented [in part, as the letter did not advise the Veteran of 38 C.F.R. § 3.158(a)] the Board's remand instructions, asking him to submit authorization release forms for Baylor Hospital. He was not advised that he had up to one year to respond; he has not yet done so. The RO nonetheless (disregarding the 1 year period the Veteran has to respond) readjudicated the matter in a May 2013 SSOC, based on an incomplete record, and noted that he had not responded to the January 2013 letter. The Board invites the AMC's attention to the January 2013 remand, specifically to the language advising the Veteran that he has one year to respond. The one year period has not yet expired. The Board's remand noted that the record was incomplete, and that the evidence sought was considered critical. Those records cannot be secured by VA without the Veteran's cooperation authorizing release. His claim cannot be properly addressed on the merits without those records, as without such records the accurate disability picture is unknown. Because the RO has readjudicated the matter on the merits, suggesting that it is acceptable to ignore requests for critical evidence sought, this matter must once again be remanded to the RO for compliance with the previous order for development of the record. AMC is advised (in case it is unaware) that the Court has found (by endorsement of Joint Motions by the Parties to the effect) that readjudication of a claim prior to the expiration of a time period afforded for response is a due process violation that invalidates any application of 38 C.F.R. § 3.158(a). AMC is reminded that compliance with the Board's remand instructions is not discretionary, but is mandated as a matter of law. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. The RO must ask the Veteran to identify all medical providers from whom he has received treatment for the right hip disability since March 2012, and to provide authorizations for VA to secure the complete updated clinical records of all such treatment and evaluations. Of particular interest are complete records of the evaluations leading up to the surgery at Baylor Hospital in March 2012, the records pertaining to that surgery, and the records pertaining to the post-operative convalescence. He must be afforded the remainder of the one year period (from January 31, 2013) provided by regulation to respond. If he does not submit the authorization forms sought, as requested, the claim must be processed under 38 C.F.R. § 3.158 as abandoned. If he provides the identifying information and releases sought, the RO should secure for the record copies of the complete clinical records of the identified treatment not already associated with the claims file. He should be notified if any private/non-VA records identified are not received pursuant to the RO's request, and advised that it is his responsibility to ensure that the records are received. If a submission by a provider or the Veteran is incomplete, the Veteran must be so advised, and afforded the opportunity to complete the submission. If a private provider does not respond to the RO's request for records, and the Veteran does not submit such records upon being so advised, the claim must be processed as abandoned under 38 C.F.R. § 3.158(a). 2. The RO should arrange for any further development suggested by the records received pursuant to the instructions above, including entitlement to a temporary total rating for post-surgical convalescence. The RO should then (after January 31, 2014, if the Veteran does not respond with the identifying information and releases, in which case the readjudication must be under 38 C.F.R. § 3.158(a)) readjudicate the claim. If it remains denied, the RO should issue an appropriate SSOC and afford the Veteran the opportunity to respond. The case should then be returned to the Board, if in order. 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 claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs