Citation Nr: 1341404 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 07-13-931 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for service-connected mechanical low back pain with degenerative disc disease. 2. Entitlement to an initial rating in excess of 10 percent for service-connected left shoulder impingement. 3. Entitlement to an initial rating in excess of 10 percent for service-connected right shoulder tendonitis. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran had active service from May 1984 to August 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In May 2011, the Board remanded the appeal for further development, and it is again before the Board for appellate review. This appeal had originally included a request for service connection for a heart disorder. In an August 2012 rating action, the RO awarded service connection for right and left atrial enlargement, assigned a 30 percent disability evaluation. This constitutes a complete grant of the benefit sought. As a consequence, this claim is no longer before the Board for appellate consideration. The issues of entitlement to increased evaluations for the left shoulder impingement and the right shoulder tendonitis are subject to the attached remand. FINDING OF FACT The Veteran's mechanical low back pain with degenerative disc disease is manifested at its most severe by forward flexion to not less than 81 degrees and combined range of motion exceeding 120 degrees, without muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, and without physician-prescribed bed rest constituting incapacitating episodes under VA regulations. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for service-connected mechanical low back pain with degenerative disc disease have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 U.S.C.A. § 4.71a, Diagnostic Code 5237 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Stegall Considerations This case was remanded by the Board in May 2011. The United States Court of Appeals for Veterans Claims (Court) has held "that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders." See Stegall v. West, 11 Vet. App. 268, 271 (1998). The purpose of the May 2011 remand was to ask that the Veteran to identify outstanding treatment records and associate them with the claims file and to schedule VA examinations to assess the severity of the Veteran's spine disability. A review of the post-remand record shows that a letter was sent in May 2011 asking the Veteran to identify and authorize release of records, if necessary, and he did not respond. A VA examination was performed in June 2011. Therefore, the Board determines that the RO/AMC substantially complied with the Board's orders in the May 2011 remand, and that the Board may now proceed with adjudication of the claim. II. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his or her claim and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claim. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Here, the Veteran is appealing the initial rating assignment as to his lumbar spine disability. Once service connection has been granted, the context in which the claim initially arose, the claim has been substantiated; therefore, additional VCAA notice under § 5103(a) is not required because the initial intended purpose of the notice has been fulfilled, so any defect in the notice is not prejudicial. Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Rather, thereafter, once a notice of disagreement (NOD) has been filed, for example contesting a downstream issue such as the initial rating assigned for the disability, only the notice requirements for a rating decision and statement of the case (SOC) described in 38 U.S.C. §§ 5104 and 7105 control as to the further communications with the Veteran, including as to what evidence is necessary to establish a more favorable decision with respect to downstream elements of the claim. 38 C.F.R. § 3.159(b)(3) (2013). The RO has provided the Veteran the required SOC discussing the reasons and bases for not assigning a higher rating at any stage of the appeal period and citing the applicable statutes and regulations. VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim and providing him with a VA examination. The Veteran's service treatment records and the reports of March 2004 and June 2011 VA examinations were reviewed by both the AOJ and the Board in connection with adjudication of the claim. The Veteran has not identified any additional, relevant treatment records the Board needs to obtain for an equitable adjudication of the claim. With regard to the VA examinations, the Board notes that once VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this case, each examiner documented the Veteran's subjective complaints and medical history, and evaluated the Veteran. The Board observes that the March 2004 VA examiner did not review the claims file, but as this examination was performed pre-discharge, there was not yet a claims file available. Nothing suggests that any examiner documented findings inconsistent with the medical history outlined in the claims file or not representative of the Veteran's symptomatology. Therefore, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159 (c)(4). In light of the above, the Board concludes that the medical evidence of record is sufficient to adjudicate the Veteran's claims without further development and additional efforts to assist or notify the Veteran in accordance with VCAA would serve no useful purpose. See Soyini, 1 Vet. App. at 546. Therefore, the Board determines that the Veteran will not be prejudiced by the Board proceeding to the merits of the claim. III. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2013). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a veteran appeals the initial rating assigned for a disability at the time that service connection for that disability is granted, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous . . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portrays the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). The Veteran's mechanical low back pain with degenerative disc disease has been assigned a 10 percent rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2013). The Veteran contends that his functional impairment is greater than contemplated by the assigned ratings and that higher ratings are warranted throughout the appeal period. As relevant to the lumbar spine, under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating requires forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. The notes applicable to the General Formula are as follows: Note (1): Evaluate any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2013). Under Diagnostic Code 5243, intervertebral disc syndrome may be rated under either the General Formula or under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. Under the Formula for Rating Intervertebral Disc Syndrome, incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months warrants a rating of 10 percent. Incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months warrants a rating of 20 percent. Incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months warrants a rating of 30 percent. Incapacitating episodes having a total duration of at least 6 weeks during the past 12 months warrants a rating of 60 percent. Note (1): For purposes of evaluating under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disk syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2): If intervertebral disk syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. Relevant evidence for this time period includes the reports of March 2004 and June 2011 VA examinations. The Board observes that the Veteran indicated that he had experienced increased pain in his lumbar spine at the June 2011 VA examination, but had not sought treatment for the disability. The March 2004 VA examination found range of motion at its most limited to be 81 degrees forward flexion, 19 degrees extension, 26 degrees right lateral flexion, 30 degrees left lateral flexion, 48 degrees right rotation, and 65 degrees left rotation. Pain was noted with extension and right rotation, but there was no additional loss of motion with repetition. In fact, forward flexion, extension, and right lateral flexion were all found to be to a greater degree after five repetitions. The diagnosis was mechanical low back pain. The examiner documented that the Veteran was running three to four miles three times per week, lifting weights and participating fully in Air Force physical fitness training and testing. Walking was unlimited. Neurological testing was negative for any deficiencies. At the June 2011 VA examination, the Veteran had subjective complaints of being unable to sit for long without pain and trouble straightening up, requiring a heating pad. He also reported that the need to lie down had become more frequent and that these symptoms occurred twice per month. Additionally, he reported a history of severe flare-ups occurring every two to three weeks and lasting from three to seven days. The Veteran endorsed subjective symptoms of pain, weakness, fatigue, stiffness, and spasm, as well as incapacitating episodes lasting from two to three days each and totaling approximately three to four weeks in the last year. However, such episodes were not physician-prescribed bed rest, but rather periods during which the Veteran telecommuted from home rather than went to work. No time was lost from work due to these episodes. There were also complaints of severe pain radiating into the left buttock and hip. However, sensory, motor, and reflex neurological findings were normal. Gait and posture were observed to be normal, and there were no objective findings of spasm, atrophy, guarding, pain with motion, tenderness, or weakness. Range of motion was normal at 90 degrees forward flexion and 30 degrees extension, bilateral flexion, and bilateral rotation. No pain on motion was documented. There was no additional limitation with repetitive motion. The examiner diagnosed degenerative disc disease of the upper and lower thoracic spine with osteopenia. In light of the above, the Board determines that a rating in excess of the 10 percent assigned for the service-connected lumbar spine disability is not supported by the evidence. A rating in excess of 10 percent requires limitation of forward flexion to 60 degrees or less, combined range of motion to 120 degrees or less, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. None of these manifestations are present at any time during the appeal period, even with consideration of any additional limitation due to pain, fatigue, weakness lack of endurance, or incoordination on repetition. Consequently, a rating in excess of 10 percent for service-connected mechanical low back pain is denied. Consideration has been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board notes that while the Veteran has a diagnosis of degenerative disc disease and complaints of neurological pain and that IVDS was noted as present at the June 2011 VA examinations, but while the examiner documented subjective episodes of incapacitation, these episodes did not meet the definition of physician-prescribed bed rest under VA regulations. Moreover, there was no time lost from work during those periods as the Veteran was able to telecommute. Thus, a rating in excess of that assigned are not warranted at any point during the appeal period under the Formula for Rating IVDS. Moreover, the Veteran's neurological testing was normal. Therefore, a separate rating for a right or left lower extremity disability is not warranted. Finally, no ankylosis of the spine was found, and a rating for such manifestations is not warranted for the spine disability on appeal. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2013). The Veteran asserts that his lumbar spine symptoms have been more severe throughout the appeal period than contemplated by the assigned ratings. Under certain circumstances, lay statements may serve to support a claim for service connection by suggesting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran is competent to speak to certain symptoms of his disability, such as pain and restriction of movement; however, the functional loss caused by those symptoms is ascertained by objective clinical testing by a medical professional. While the Veteran reports that his lumbar spine disability causes severe flare-ups that last days at a time, as well as incapacitation, the clinical findings in this case do not support the Veteran's claims of increased disability. The Board has also considered the doctrine of reasonable doubt. However, as reflected by the above discussion, the preponderance of the evidence is against the Veteran's claims, and the doctrine is not for application. 38 U.S.C.A. § 5107(b) (West 2002); see also, e.g., Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extra-schedular rating and TDIU Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2013). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extra-schedular rating. 38 C.F.R. § 3.321(b) (2013). The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, a task performed either by the RO or the Board. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, and no referral is required, although in this case the claim was referred to the Director of Compensation. The Veteran's lumbar spine disability manifests in pain, loss of range of motion, and difficulty with sitting for long periods of time and with straightening up. These signs and symptoms, and their resulting impairment, are contemplated by the rating schedule. The General Formula for Rating Diseases and Injuries of the Spine provides disability ratings on the basis of limitation of motion. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell, 25 Vet. App. at 37. For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss. Given the variety of ways in which the rating schedule contemplates functional loss for musculoskeletal disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture, which is manifested by impairment in bending, lifting, and sitting for long periods. In short, there is nothing exceptional or unusual about the Veteran's lumbar spine disability because the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet. App. at 115. Moreover, with respect to the second Thun element, the evidence does not reflect that "related factors" are present. Specifically, while the Veteran is affected in his work, having to telecommute several days per year, he has not lost time from work due to service-connected disability. He has also not been hospitalized for his service-connected disability. In light of the above, the Board concludes that the Veteran's lumbar spine disability does not present such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. Therefore, an extra-schedular rating for service-connected mechanical low back pain with degenerative disc disease is denied. Finally, while the appeal was pending, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part and parcel of an increased-rating claim when raised by the record. The Board has jurisdiction to consider the Veteran's possible entitlement to a TDIU rating in this circumstance when the TDIU issue is raised by assertion or reasonably indicated by the evidence and is predicated at least in part on the severity of the service-connected disability in question, regardless of whether the RO has expressly addressed this additional issue. See VAOPGCPREC 6-96 (Aug. 16, 1996). See also Caffrey v. Brown, 6 Vet. App. 377 (1994); Fanning v. Brown, 4 Vet. App. 225, 229 (1993); EF v. Derwinski, 1 Vet. App. 324 (1991). In this case, the Veteran has not filed a filed a claim for TDIU, and the rating evidence shows that he has been gainfully employed throughout the appeal period . While the Veteran's service-connected disability has an impact on his work day, nothing suggests that he is unable to perform his duties or not work when scheduled to the point it makes his employment less than substantially gainful. Therefore, further contemplation of a TDIU rating in this case is not necessary. ORDER Entitlement to an initial rating in excess of 10 percent for service-connected mechanical low back pain with degenerative disc disease is denied. REMAND The Board's review of the record indicates that another remand is needed to assess the current severity of the Veteran's bilateral shoulder disabilities. Specifically, the June 2011 VA examiner noted that the Veteran experiences pain with motion, but not the point at which the pain begins. This finding is of particular interest considering the Veteran's complaints that he has trouble driving because he has to hold his arms at shoulder level when he grips the wheel. Thus, the Board remands the appeal so that another VA orthopedic examination of the shoulders may be performed. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA orthopedic examination to assess the current nature and severity of his bilateral shoulder disabilities. The claims file and a copy of this Remand must be provided to the examiner in conjunction with the examination. The examiner should perform all necessary diagnostic tests, and report all clinical manifestations in detail. All ranges of motion of the right shoulder, both initial and after repetitive motion, must be stated, and compared with the normal ranges of motion. The examiner should document if the Veteran experiences pain during the range of motion testing, and if so, at what degree the pain begins. Any functional loss noted, as defined by DeLuca v. Brown, 8 Vet. App. 202 (1995) must be identified; if the functional loss results in additionally limited range of motion, the examiner should state the degree to which the range(s) of motion is additionally limited. The examiner is also asked to comment as to whether the clinical examination showed any ankylosis, malunion or nonunion of the humerus, scapula, or clavicle, or shoulder instability or subluxation. Furthermore, the examiner should state whether any pain associated with the right or left shoulder disability could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use or during flare-ups. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The examiner should note the Veteran's subjective complaints both in the claims file and at the examination and opine as to whether such complaints are consistent with objective clinical findings. A complete rationale for any opinion advanced should be provided. 2. Notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for any VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158, 3.655 (2013). 3. After completing the above development, and any other development deemed necessary, readjudicate the issue on appeal. If the benefit sought remains denied, provide a supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. The Veteran 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 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). ______________________________________________ L. M. Barnard Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs