Citation Nr: 1601304	
Decision Date: 01/12/16    Archive Date: 01/21/16

DOCKET NO.  11-22 502	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUES

1. Entitlement to an increased rating in excess of 40 percent for thoracolumbar degenerative joint disease with degenerative disc disease (back condition). 

2. Entitlement to service connection for peripheral neuropathy, to include as secondary to service-connected back condition. 

3. Entitlement to a compensation for sleep disturbance/disorder, as secondary to service-connected back condition, or in the alternative, for extraschedular consideration. 

4. Entitlement to compensation for residual disabilities secondary to medications for service-connected back condition, or in the alternative, for extraschedular consideration. 


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States
ATTORNEY FOR THE BOARD

Zi-Heng Zhu, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from December 1973 to May 1995. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.

In the July 2010 RO rating decision, the Veteran was granted his claim for an increased rating for his service-connected back condition, and raised his rating from 20 percent disabling to a 40 percent disability rating. The Veteran subsequently filed a timely notice of disagreement (NOD) and subsequent substantive appeal (VA Form 9), asserting the need for an even higher rating. 

In February 2015, the Board denied the Veteran's claim for a rating in excess of 40 percent for his service-connected back condition. The Veteran, thereafter, appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in November 2015, the Court granted a Joint Motion for Remand (JMR) by the Veteran and VA General Counsel, which was incorporated by reference, to vacate the Board's decision and remand the case to the VA. 

This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this Veteran's case should review this electronic record.

The issues of entitlement to service connection for peripheral neuropathy, and entitlement to compensation for a sleep condition and residuals of medication, to include, extraschedular consideration are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

The Veteran's service-connected back condition is manifested at worst by 10 degrees of forward flexion with no indication of ankylosis of the thoracolumbar spine. However, the Veteran, during this time period, suffered from additional functional loss from pain, flare-ups, weakness and fatigue.


CONCLUSION OF LAW

Resolving all reasonable doubt in favor of the Veteran, the criteria for a disability rating of 50 percent, but not higher, for a back condition have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321(b), 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71(a), Diagnostic Code (DC) 5242; DeLuca v. Brown, 8 Vet. App. 202 (1995).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA has satisfied its duties under the Veteran's Claims Assistance Act of 2000 (VCAA) to notify and assist. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2015).

The RO provided VCAA notice with respect to the Veteran's claims. As here, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been substantiated, thereby rendering section 5103(a) notice no longer necessary because the purpose the notice is intended to serve has been fulfilled. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 491 (2006).

VA's duty to assist under the VCAA includes helping claimants to obtain service treatment records and other pertinent records, including private medical records. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment records, private medical records, and VA medical records. The duty to obtain relevant records is satisfied. See 38 C.F.R. § 3.159(c).

VA's duty to assist also includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on the claim, as defined by law. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79 (2006). An adequate examination must consider the issue at hand and provide sufficient analysis for the Board to weigh that examination against others. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). However, "there is no reasons or bases requirement imposed on examiners." Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012). Rather, a medical opinion is adequate when it is based on consideration of the veteran's prior medical history and examinations, and the final report describes the disability in sufficient detail so that the Board's "'evaluation of the claimed disability will be a fully informed one.'"Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). The Board finds that the VA examinations provided for the condition decided herein are adequate under the law.

Increased Rating - Generally 

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2015). 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 (West 2014); 38 C.F.R. § 4.1 (2015). 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 (2015).

Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. See 38 C.F.R. § 4.2; see also Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. See Powell v. West, 13 Vet. App. 31, 34 (1999).

In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran's claim is to be considered. In initial rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2 (2015).

It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. See 38 C.F.R. § 4.2. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

In general, all disabilities, including those arising from a single disease entity, are rated separately, and 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. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the Veteran's service-connected disability. The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes.

Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the Veteran raised them, as well as the entire history of his disability in reaching its decision. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The United States Court of Appeals for Veterans Claims (Court) clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath, at 592. Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). As will be further explained below, in making the determination for a higher rating than that currently assigned for the Veteran's claimed condition, the Board notes that it took into account the Veteran's complaints of pain and flare-ups, and was cognizant of the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59.

Increased Rating - Back Condition

The Veteran contends that his service-connected back condition is more severe than his current rating of 40 percent. Specifically, the Veteran contends his back condition manifested with severe pain, stiffness, weakness, fatigue, and flare-ups. The Board finds that evidence of record reveals that while the Veteran's range-of-motion is significantly limited, there are no signs of ankylosis of the thoracolumbar spine; however, there is significant evidence of functional loss due to pain and flare-ups as contemplated under DeLuca. 8 Vet. App. at 206 -07. Therefore, considering additional functional loss, such as weakness, fatigue, and pain on movement, the Board finds that the Veteran's back condition more closely approximates the criteria for a rating of 50 percent.

Disabilities of the spine are evaluated under the General Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71(a), DC 5235-5242. Under the General Rating Formula, a 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is only warranted for unfavorable ankylosis of the entire spine. Any associated objective neurologic abnormalities are evaluated separately under an appropriate diagnostic code. Id. Note (1).

Here, the Veteran's has been afforded multiple VA Compensation and Pension (C&P) examinations to assess the nature and severity of his claimed back condition throughout the claims period. Such records also include private treatment records from the Veteran's treating physicians/chiropractors who similarly assessed the Veteran's back condition, to include conducting X-ray diagnostics. The Board finds that a review of the all such objective evidence reveals that the Veteran's back condition at its worse was demonstrated during a private physical examination in May 2013, where the Veteran's flexion was measured at only 10 degrees of flexion.  See Private Medical Report from Village Physical Therapy, dated May 2013. All further examinations and treatment records, to include the Veteran's more recent C&P examination in July 2015, revealed an even higher range-of-motion. 

Furthermore, the Board notes that an analysis of the competent medical evidence of record reveals that the Veteran, while suffering from Intervertebral Disc Syndrome (IVDS), has only experienced up to 10 days of self-prescribed incapacitating episodes in the last 12 months. Specifically, during the Veteran's March 2014 VA examination, the Veteran explicitly noted that he suffered from only 10 day, and received no official prescription for bedrest from a medical doctor. 

Finally, and most probative, the examinations, both private and those provided by the VA, have consistently demonstrated no signs of ankylosis, favorable or unfavorable, as part of the Veteran's back condition. Similarly, a review of all of the private assessment and X-ray diagnostics performed on the Veteran's back reveals no mention of a condition that would be akin to fusion (ankylosis) of the Veteran's thoracolumbar spine, or the entire spine itself. See VA C&P Examinations dated June 2010, Jun 2011, and March 2014. While the Board recognizes that the Veteran has continuously claimed he does suffer from ankylosis of his back, the Board does not find that he, nor his representative, have shown that they hold adequate specialized education, training, or experience to assess such a complex condition as ankylosis of the spine. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). To this end, the Board finds that the examination reports and diagnoses provided by such medical professionals noted on record are accordingly more probative in establishing that no such ankylosis is present in the Veteran's back condition. 

In addition, as noted above, the Veteran has submitted contemporaneous private medical evidence of pain management treatments he has received throughout the appeals period. A review of these records, along with those VA treatment records in the Veteran's claims file, reveal that the Veteran has been receiving treatments for his back pain. However, these records do not reveal a great deal of objective testing of the Veteran's range of motion, nor do they reveal any diagnoses of ankylosis of the Veteran's spine. 
As noted above, for a rating of 40 percent, the Veteran's condition must be shown to be manifested by a forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine; however, under such code, a 50 percent rating is only warranted by unfavorable ankylosis of the entire thoracolumbar spine. The Board finds that while the Veteran's range-of-motion at worse, at 10 degrees of flexion, does warrant a 40 percent rating, the competent medical evidence does not demonstrate any indication of ankylosis of any part of the Veteran's spine. Therefore, under the specific objective criteria of the ratings code, the Veteran's condition does not meet the criteria required for a 50 percent rating. 

However, the Board finds, and as pointed out by the Court in its November 2015 JMR, there is evidence of record of pain, weakness, fatigue, and flare-ups of the Veteran's back condition that has caused additional functional loss not contemplated by the rating criteria. DeLuca. 8 Vet. App. at 206-07. The record reveals that the Veteran has suffered from severe back pain that caused functional loss in conducting everyday activities, as well as flare-ups that render him nearly immobile with weakness, additional pain on movement, and fatigue. To this end, the Veteran as continuously and consistently asserted that he suffered from flare-ups that have caused him to miss work, and confining him to his armchair. During such flare-ups, the Veteran reports that he cannot stand for prolonged period of time or walk for more than 100 yard. 

With regards to such additional functional loss due to flare-ups and pain, the Board additionally recognizes that the Veteran's VA examinations have also consistently revealed that he suffered from such manifestations. During his June 2011 examination, the examiner noted that the Veteran could only walk 100 years prior to increase in pain in his back, with additional symptoms such as fatigue, decreased motion, stiffness, and flares-ups. The examiner noted that such manifestations of pain prevented him from conducting normal daily functions such as getting dressed, putting on shoes, or driving. In his more recent March 2014 examination the examiner explicitly noted additional functional losses as less movement than normal, pain on movement, disturbance of locomotion, and marked interference with sitting, standing, and weight bearing. Such sentiment is further echoed in both the Veteran's VA and private treatment records throughout the period. 

As such, the Board finds that while the Veteran's objective range-of-motion results only warrants a 40 percent rating, the additional function loss experienced by the Veteran because of pain, flare-ups, and those symptoms contemplated by DeLuca, the Veteran's back condition warrants the next higher rating of 50 percent. While the Board acknowledges that the record does not demonstrate a diagnosis of ankylosis, the Board finds that the additional functional loss described above amounts to similar effects as the kind of condition contemplated by a 50 percent rating, as such, the next higher rating of 50 percent is warranted.  

That Board notes that the Veteran's condition does not warrant a higher 100 percent rating, under the same Diagnostic Code, as there is no evidence of ankylosis of his entire spine. See 38 C.F.R. § 4.71(a), DC 5235-5242. Here, there is no evidence that the Veteran suffers from any neck condition that would amount to ankylosis of the cervical spine. As such, the Veteran's condition does not warrant a 100 percent rating under this Diagnostic Code. 

Furthermore, the Board finds that the Veteran's back condition does not warrant a higher 60 percent rating under Diagnostic Code 5243 for IVDS. See 38 C.F.R. § 4.71(a), DC 5243. During the Veteran's most recent VA C&P examination in July 2015, the VA examiner did not find that the Veteran suffered from IVDS. However, the Board does acknowledge that the Veteran had been diagnosed with IVDS by VA examiners prior, but even in such case, the Veteran has only reported up to 10 days of self-prescribed bedrest. See VA C&P Examination dated March 2014. The Board notes that under such Diagnostic Code a 60 percent rating requires incapacitating episodes of at least six weeks in duration. Therefore, even assuming the Veteran still suffers from IVDS, his frequency and duration of incapacitating episodes remain far short of that required for a rating of 60 percent. 

Extraschedular Consideration

The Board considered whether this claims should be referred for consideration of an extraschedular rating pursuant to 38 C.F.R. § 3.321 (b) , which is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). 

There is a three-step inquiry for determining entitlement to an extraschedular rating. Thun v. Peake, 22 Vet. App, 111 (2008). First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id.

The Board finds that an extraschedular rating, or in the alternative, separate individual ratings may be warranted for the Veteran's claimed symptoms associated, or secondary to the service-connected back condition discussed herein. As raised by the Court's JMR, and the Veteran's representative, the Veteran suffers from a number of health issues that are secondarily associated with his back condition. Specifically, the Veteran contends that his back pain disturbs his sleep and that the medication he takes for his back condition has caused additional side effects such as drowsiness. The Board finds that such symptoms/side effects of the Veteran's service-connected back condition is not in-fact contemplated by his current rating. However, additional development is required to determine the nature and severity of such additional symptoms, and determine whether such additional issues should be separately rated or, in the alternative, if an extraschedular rating is warranted. This will be further addressed in the Remand portion of this decision. 

The Board also notes that the Court has held that the issue of a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when a request for TDIU is reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). However, in the present case, the Veteran has not explicitly raised the issue of TDIU. Likewise, the record does not reasonably raise the issue of TDIU. 


ORDER

Entitlement to an increased rating of 50 percent, but not higher, for a back condition is granted. 


REMAND

Unfortunately, the remaining claims for entitlement to service connection for peripheral neuropathy and entitlement to compensation for sleep disturbance and residuals of medication require further development before being decided.  Although the Board sincerely regrets the additional delay that inevitably will result as a consequence of this remand, the additional development of these claims is necessary to ensure there is a complete record upon which to adjudicate these claims and to afford him every possible consideration.

Service Connection - Peripheral Neuropathy

With regards to the Veteran's claim of service connection for peripheral neuropathy, as secondary to his service-connected back condition, the Board finds that the previous Board decision in February 2015, did not decide, nor deny the Veteran's claim for service connection. While the Board did discuss the Veteran's condition with regards to neuropathy, such discussion only spoke to such criteria outlined in the VA examination reports discussed throughout that decision. In both the Introduction and subsequently in the body of the decision in question, the Board expressly noted that such issue is to be referred back to the RO/AOJ for adjudication in the first instance. The Board notes that such decision/denial of this claim was neither included in the Finding of Facts, Conclusions of Law, or as part of the Order from the Board. As such, the Board finds that the February 2015 decision did not include any adjudication of this claim, and that any intimation towards any determination on the merits was in error. 

Therefore, in accordance with the Court's directive, the Board remands this claim for service connection back for AOJ consideration in the first instance without bias. 

Entitlement to Compensation - Sleep Disturbance / Residual of Medication

The Board finds that further evidentiary development is necessary before the Board can adjudicate the claim for entitlement to compensation for sleep disturbance and residual disabilities secondary to medication for service-connected back condition, or in the alternative, for extraschedular consideration, on the merits. 

The Board notes that a review of the relevant evidence of record, in particular the lay statements from the Veteran, reveals that the Veteran is, and has been, suffering from various side-effects due to his current cocktail of medications he takes for his service-connected back disability. The Veteran has alleged that these medications have caused various side-effects such as extreme drowsiness. The Board finds that there is nothing in the language of the rating criteria for musculoskeletal disorders that account for side-effects of medications. Therefore, the Board finds that these side-effects are not contemplated by the rating criteria for the Veteran's service-connected back condition and should be separately adjudicated. 38 C.F.R. § 4.25(b). 

Likewise, the Veteran has also specifically alleged that his constant back pain has caused him severe sleep disturbance. Specifically, he asserts that such pain wakes him up at night, and prevents him from sleeping through the night. Again, the Board finds that the current Diagnostic Code the Veteran's back condition is rated under is not so comprehensive as to contemplate such condition as sleep disturbance as claimed here by the Veteran; and as it is not contemplated, the VA must again consider a separate disability rating, or in the alternative an extraschedular rating for such a condition.  
However, in both claims, the Board notes that further evidentiary development must be conducted prior to adjudication on these issues. There is no medical evidence or examination regarding these secondary conditions. The Board finds that a VA examination regarding any alleged side-effect of the Veteran's medications and sleep disturbance should be conducted.

Accordingly, the case is REMANDED for the following action:

1. The RO will ascertain if the Veteran has received any VA, non-VA, or other medical treatment for the remaining claims that are not evidenced by the current record. The Veteran should be provided with the necessary authorizations for the release of any treatment records not currently on file. The RO should then obtain these records and associate them with the claims folder. The Veteran may also submit any evidence or further argument relative to the claims at issue.

2. Review the obtained records to determine if they identify any additional pertinent treatment providers who may have relevant records not presently associated with the claims file. Following the receipt of any necessary authorizations from the Veteran, attempt to obtain all identified medical records. All reasonable attempts to obtain such records should be made and documented.

3. Once the above has been accomplished, arrange for the Veteran to be examined by appropriate VA examiner(s), for the claimed conditions of peripheral neuropathy, sleep disturbance, and residuals of medication. 

a. With regards to the Veteran's claim of service connection for peripheral neuropathy, as secondary to his back condition, the examiner is requested to ascertain the current nature and etiology of the Veteran's conditions, to include current diagnoses. 

If the Veteran is diagnosed, or suffers from, peripheral neuropathy, the examiner is asked to specifically opine as to whether the Veteran's condition is associated, as secondary to, (caused or aggravated by) the Veteran's service-connected back condition.  

b. With regards to the Veteran's claim for sleep disturbance, the examiner is specifically asked to opine as whether the Veteran's sleep disturbance is caused /aggravated (permanently worsened beyond normal progression) or otherwise related, to his service-connected back condition. 

c. With regard to the Veteran's claim for residuals of back medication, the examiner is asked to opine as to the nature and etiology any conditions, as due to his medications, to include severe drowsiness. The examiner must specifically address whether such conditions were caused /aggravated (permanently worsened beyond normal progression) or otherwise related to his medications for his back condition, and weather they create additional functional loss to the Veteran's daily life or employment.

d. The examiner should be provided with the Veteran's claims file in conjunction with the examination, and should indicate in the report that the claims file was reviewed. 

e. All testing deemed necessary should be performed. 

f. The examiner must review all medical evidence associated with the claims file. 

g. A complete rationale for any opinion expressed should be included in the examination report. 

4. The RO/AOJ should review the reports prepared by examiner, and if the examiner determines that he/she cannot provide an opinion on any issue at hand without resorting to speculation, the examiner should be asked to explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted regarding the etiology or nature of any diagnosed disorder or whether additional testing or information could be obtained that would lead to a conclusive opinion. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the examiner should be undertaken so that definite findings can be obtained.)

5. After the above development has been completed, determine whether referral to VA's Director of Compensation and Pension Service for extraschedular consideration as to whether the Veteran's additional disability from his medications, secondary to his service connected back condition, and sleep disturbance is warranted.

If no referral to the VA's Director of Compensation and Pension Service is warranted, readjudicate the claims, addressing whether separate ratings are warranted for functional limitations due to the claimed secondary disabilities such as sleep disturbance or residuals of medication. After the Veteran and his representative are given the requisite opportunity to respond, the case should be returned to the Board for further appellate consideration, if in order.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
BRADLEY W. HENNINGS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs