Citation Nr: 1627140	
Decision Date: 07/07/16    Archive Date: 07/14/16

DOCKET NO. 12-24 769	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUES

1. Entitlement to an increased rating in excess of 20 percent for post-operative herniated nucleus pulposus at L4-L5.

2. Entitlement to a compensable rating prior to January 26, 2012 and a rating in excess of 10 percent thereafter for left lower extremity radiculopathy.

3. Entitlement to a compensable rating prior to January 26, 2012 and a rating in excess of 10 percent thereafter for right lower extremity radiculopathy.

4. Entitlement to an increased rating in excess of 10 percent for constipation.

5. Entitlement to service connection for a left hand disability.

6. Entitlement to service connection for a left wrist disability, to include traumatic arthritis.

7. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).
REPRESENTATION

Veteran represented by:	Christopher Loiacono, Agent


WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

C. Wendell, Associate Counsel


INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014).

The Veteran served on active duty in the U.S. Army from April 1953 to July 1956.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newington Connecticut, and July 2012 and October 2012 rating decisions issued by the VA RO in New York, New York. 

By way of background, the RO denied an increased rating for a low back disability in February 2010, granted service connection for constipation in July 2012, and denied service connection for left wrist and left hand disabilities in October 2012. The Veteran separately and timely perfected appeals as to all of these decisions or the ratings assigned therein. All of the issues have been combined into a single appeal for the purposes of Board review.

The RO granted increased ratings of 10 percent for the Veteran's constipation and bilateral lower extremity radiculopathy in a February 2016 rating decision. The grant of an increased rating during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. Id. The issues have been re-characterized on the title page to reflect the grants of 10 percent ratings for constipation and left and right lower extremity radiculopathy.

When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In this case, as noted in the prior Board remand evidence of unemployability has been submitted, and therefore the issue of entitlement to TDIU has been raised by the record.

When a Veteran files a claim for an increased rating, he is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice, 22 Vet. App. 447. In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). 

However, the Veteran does not have a single disability rated at 100 percent with an additional disability rated at 60 percent or more, even when considering TDIU and temporary total ratings. 38 U.S.C.A. § 1114(s); Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2010); 38 C.F.R. §§ 3.350(i), 4.29, 4.30.
There is no lay or medical evidence the Veteran is housebound in fact, requires aid and attendance, or that his disabilities result in loss of use of a limb, blindness or deafness. 38 U.S.C.A. §§ 1114(s), (l), (k); 38 C.F.R. § 3.350(a), (b), (i). As such, the Board will not infer the issue of entitlement to SMC at this time.

The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in February 2014. A transcript of the hearing is associated with the electronic claims files.

The Board remanded the issues on appeal for additional development in April 2014. The identified records having been requested or obtained, the directives have been substantially complied with and the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998).

The Board has reviewed the electronic records maintained in both Virtual VA and the Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence.

The issues of entitlement to service connection for a left wrist disability and a left hand disability and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. Prior to July 30, 2014, the Veteran's low back disability was manifested by pain, weakness, incoordination, lack of endurance, instability of station, flare-ups of variable severity and frequency, altered gait, limitations on standing and walking and limitation of flexion to 35 degrees at worst; but not by limitation of flexion to 30 degrees or less, or ankylosis.

2. From July 30, 2014 forward, the Veteran's low back disability was manifested by objective evidence of pain at 30 degrees or less, altered gait, flare-ups of variable severity and frequency, weakness, tenderness, and interference with walking and standing; but not by ankylosis of any kind.

3. From July 28, 2009 to December 10, 2012, the Veteran's left lower extremity radiculopathy was manifested by decreased reflexes, abnormal gait, numbness, burning sensations and weakness, resulting in mild incomplete paralysis. 

4. From December 10, 2012 forward, the Veteran's left lower extremity radiculopathy was manifested by pain, numbness, burning sensations, loss of sensation in the foot, abnormal gait, decreased reflexes and weakness, resulting in moderate incomplete paralysis. 

5. From July 28, 2009 to December 10, 2012, the Veteran's right lower extremity radiculopathy was manifested by decreased sensation, numbness, burning sensations, abnormal gait, decreased reflexes and weakness, resulting in mild incomplete paralysis. 

6. From December 10, 2012 forward, the Veteran's right lower extremity radiculopathy was manifested by pain, numbness, loss of sensation in the foot, abnormal gait, decreased reflexes, atrophy, burning sensations and weakness, resulting in moderate incomplete paralysis. 

7. For the entire period on appeal, the Veteran's constipation has been manifested by epigastric pain, chronic constipation, and abdominal discomfort; but not by diarrhea, alternating diarrhea and constipation, or more or less constant abdominal distress.


CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 20 percent for a low back disability prior to July 30, 2014 have not been met or approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.15, 4.16, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2015).

2. The criteria for a rating of 40 percent, but no higher, from July 30, 2014 forward for a low back disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.15, 4.16, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2015).

3. The criteria for a rating of 10 percent, but no higher, from July 28, 2009 to December 10, 2012 for left lower extremity radiculopathy have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2015).

4. The criteria for a rating of 20 percent, but no higher, from December 10, 2012 forward for left lower extremity radiculopathy have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2015).

5. The criteria for a rating of 10 percent, but no higher, from July 28, 2009 to December 10, 2012 for right lower extremity radiculopathy have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2015).

6. The criteria for a rating of 20 percent, but no higher, from December 10, 2012 forward for right lower extremity radiculopathy have been met. 38 U.S.C.A. 
§§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2015).

7. The criteria for a rating in excess of 10 percent for constipation have not been met or approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.15, 4.16, 4.114, Diagnostic Code 7319 (2015).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Veterans Claims Assistance Act of 2000 (VCAA)

VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claims. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015).

A. Duty to Notify

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, the evidence VA will obtain on the Veteran's behalf, and the evidence the Veteran 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, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

Concerning the increased rating claims for the low back and bilateral radiculopathy, VA issued a VCAA letter in August 2009, prior to the initial unfavorable adjudication in February 2010. As the letter contained all of the necessary information listed above, VA has met its duty to notify as to those issues.

With respect to the constipation issue, the current appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional discussion of the duty to notify is therefore required.

With respect to the Board hearing, the Court of Appeals for Veterans Claims held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ noted the current appellate issues at the beginning of the hearing, and asked questions to clarify the Veteran's contentions and treatment history. The Veteran demonstrated through his testimony that he had actual knowledge concerning what is required to substantiate his claim. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing.

B. Duty to Assist

The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The RO associated the Veteran's service and VA treatment records with the claims file. All identified or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. As such, the Board finds VA has satisfied its duty to assist with the procurement of relevant records. 

The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. See 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was provided with a VA examination in September 2009, October 2009, and January 2012. The examinations were adequate because the examiners considered and addressed the Veteran's contentions and conducted thorough medical examinations. 

The September 2009 and October 2009 examiners stated that the claims file was not reviewed. However, a failure to review the claims file does not automatically render an examination inadequate. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Instead, an examiner need only be apprised of a sufficient number of relevant facts to provide an informed opinion as to the severity of the disability at the time of the examination. Id.; Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
Here, both examiners noted the Veteran's subjective reports of his symptomatology and the history of the disability. Both then conducted their own objective examination of the low back disability. Between the Veteran's account of his symptoms and the examiners' own observations, the two examiners were apprised of a sufficient number of relevant facts to provide an informed opinion concerning the severity of the low back disability, and any associated neurologic abnormalities, at the time of the examinations. Thus, the examination reports are adequate for rating purposes despite the fact that the claims file was not reviewed.

Based on the foregoing, the Board finds the examination reports to be thorough, complete, and sufficient bases upon which to reach a decision on the Veteran's claims for increased ratings for a low back disability, bilateral lower extremity radiculopathy, and constipation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-05 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Since VA has obtained all relevant identified records and provided adequate medical examinations, its duty to assist in this case is satisfied.

II. Increased Schedular Ratings

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. 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 the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id.
If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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.

When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45.

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

A. Low Back

The Veteran's low back disability is rated under Diagnostic Code 5243, covering intervertebral disc syndrome (IVDS). IVDS can be rated either under the General Rating Formula for Diseases and Injuries of the Spine (General Formula), based on limitation of motion, or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Incapacitating Episodes Formula). See 38 C.F.R. § 4.71a, Incapacitating Episodes Formula. 

Under the General Formula, the spine is evaluated 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. Id. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id.

A 40 percent rating is warranted for forward flexion of the thoracolumbar spine of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Id. 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. Id. 

Concerning disabilities affecting the spine, any associated objective neurologic abnormalities are evaluated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General Formula, Note 1. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Id. at Note 2. 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 lateral rotation, with the normal combined range of motion of the thoracolumbar spine being 240 degrees. Id.

Unfavorable ankylosis is a condition in which the entire thoracolumbar spine is fixed in flexion or extension, and the ankylosis results in one of 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. Id. at Note 5. Fixation of a spinal segment in neutral position always represents favorable ankylosis. Id.

Under the Incapacitating Episodes Formula, a 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. 38 C.F.R. § 4.71a, Incapacitating Episodes Formula. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Id. 

A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 during the past 12 months. Id. An "incapacitating episode" for purposes of totaling the cumulative time is defined as "period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." 38 C.F.R. § 4.71a, Diagnostic Code 5243, Incapacitating Episodes Formula, Note 1.

During the period on appeal, the Veteran has reported that his low back disability is manifested by pain, limitation of motion and interference with standing and walking, all of which he is competent to report. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). There is no evidence that the Veteran's statements are not credible, and therefor they are entitled to probative weight.

The Veteran was provided with VA examinations in September 2009, October 2009 and January 2012. The September 2009 examiner noted subjective reports of severe back pain and flare-ups of variable frequency and severity resulting in increased pain and some additional limitation of motion. On examination the Veteran was found to have forward flexion to 90 degrees, extension to 30 degrees, bilateral lateral flexion to 30 degrees, and bilateral lateral rotation to 30 degrees. Objective evidence of pain was present, as well as stiffness and lack of endurance. No further loss of range of motion was found after repetitive testing.

The October 2009 examiner records subjective complaints of chronic, severe low back pain. The Veteran was found to have forward flexion to 80 degrees, extension to 20 degrees, and lateral flexion to 20 degrees bilaterally. No measurements for lateral rotation were provided, nor were any measurements after repetitive testing.

The January 2012 examiner noted subjective reports of back pain and flare-ups after prolonged sitting or standing. On examination the Veteran had forward flexion to 80 degrees, extension to 10 degrees, bilateral later flexion to 30 degrees, and bilateral later rotation to 30 degrees. After repetitive testing the Veteran had forward flexion to 75 degrees, but no further loss of range of motion in any other direction. The examiner noted pain on movement, instability of station, disturbance of locomotion ,and interference with sitting standing and weight bearing were present. Loss of use and ankylosis were not present. 

There is no evidence that the examiners were not competent or credible, and as the reports were based on the Veteran's statements and objective examinations, the Board finds they are entitled to significant probative weight as to the severity of the Veteran's low back disability at the time of the examinations. Nieves-Rodriguez, 22 Vet. App. 295.

Also of record are private low back evaluations from December 10, 2012, December 23, 2012, July 2, 2014, and July 30, 2014. The December 10, 2012 evaluation noted objective pain at 40 degrees, tenderness, weakness, abnormal gait, trigger points, and frequent pain. A notation that bed rest was prescribed during flare-ups was included, but no estimates of total duration of such bed rest over the past 12 months were provided. Ankylosis was not present. The December 23, 2012 evaluation found forward flexion to 35 degrees, extension to 10 degrees, right lateral flexion to 20 degrees and left lateral flexion to 15 degrees. The examiner indicated that overall there was painful functional restriction of motion by more than 40 percent.

The July 2, 2014 evaluation noted pain to be present between 31 degrees and 60 degrees of flexion. Impaired ambulation, tenderness, abnormal gait, atrophy, trigger points and frequent pain were all noted. Ankylosis was not present. Finally, the July 30, 2014 evaluation found there to be objective evidence of pain between 0 degrees and 30 degrees of flexion. Spasm, abnormal gait, and frequent pain were all present. There was no evidence of ankylosis, and the examiner did not indicate a history of physician prescribed bed rest. VA and private treatment records from the period on appeal reflect on-going treatment for low back pain, but contain no further range of motion studies other than those detailed above.

Based on the evidence of record, the Board finds that the preponderance of the evidence is against an increased rating in excess of 20 percent prior to July 30, 2014. However, the evidence of record does show that a staged, increased rating of 40 percent, but no higher, from July 30, 2014 forward is warranted. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007). 

Prior to July 30, 2014, there is no evidence that the Veteran's low back disability was manifested by limitation of flexion of the thoracolumbar spine to 30 degrees or less. The September 2009 and October 2009 VA examinations found an almost full range of motion in all directions. The lowest range of motion noted during the period prior to July 30, 2014 was in the December 23, 2012 private low back evaluation, which noted flexion to 35 degrees with objective evidence of pain. 

All of the VA examinations and the private evaluations reflect that ankylosis was not present, either explicitly by stating as such or inherently by noting that the Veteran had some range of motion in his lumbar spine. As there is no evidence that the Veteran's low back disability was manifested by limitation of flexion to 30 degrees or less or ankylosis, an increased rating in excess of 20 percent prior to July 30, 2014 is not warranted. 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5243.

However, the July 30, 2014 private low back evaluation indicated that there was objective evidence of pain between 0 and 30 degrees of flexion. While this evaluation did not contain the detailed measurements and repetitive testing usually contained in a VA examination, VA is required to take into account additional functional loss due to symptoms such as pain, fatigue, incoordination and other factors when rating musculoskeletal disabilities, including the lumbar spine. Thus, taking into account the notation that the Veteran had objective evidence of pain at 30 degrees of flexion or less, the Board finds that a staged, increased rating of 40 percent, but no higher, from July 30, 2014 forward is warranted, as that is the first date on which there is evidence that the Veteran's disability picture more nearly approximates the level of severity contemplated by a 40 percent rating. 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5243.

In evaluating the Veteran's current level of disability for the periods on appeal functional loss was considered. 38 C.F.R. §§ 4.40, 4.45. The medical evidence shows that the Veteran has, at different times, complained of pain, limitation of motion and interference with standing and walking, which he is competent to report. Jandreau, 492 F.3d 1372. However, the VA examiners specifically took these reports into account when determining the Veteran's range of motion, with the January 2012 examiner noting a further five degree loss of motion due to these factors. Additionally, the increased rating from July 30, 2014 forward assigned herein is based on, and therefore directly considers, the presence of objective pain on movement at 30 degrees of flexion or less. As such, the Board finds that any further loss of motion or functional impairment due to these factors is already contemplated by the assigned ratings. 38 C.F.R. §§ 4.40, 4.45.

No additional higher or alternative ratings under different Diagnostic Codes can be applied at any point during the period on appeal. While the Veteran has been diagnosed with IVDS, there is no lay or medical evidence indicating that the Veteran has had incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks or lasting at least 6 weeks at any point during the period on appeal. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Incapacitating Episodes Formula. As such, a rating in excess of 20 percent prior to July 30, 2014 and in excess of 40 percent from July 30, 2014 forward based on incapacitating episodes is not warranted. Id.

When evaluating disabilities of the spine, any associated objective neurologic abnormalities are to be rated separately under an applicable Diagnostic Code. 38 C.F.R. § 4.71a, General Formula, Note 1. Here, service connection for the Veteran's left and right lower extremity radiculopathy has already been granted, and therefore these associated abnormalities are already contemplated by their assigned ratings. No other neurologic abnormalities have been noted as being associated with the low back disability. The Board further notes that any associated bowel or bladder impairment must be rated separately as well. However, the Veteran is already service-connected for prostatitis, rated based on voiding dysfunction, and constipation, both of which contemplate his documented bladder and bowel impairments stemming from his low back disability  As such, additional separate compensable ratings are not warranted. 38 C.F.R. § 4.71a, General Formula, Note 1. 

Lastly, the Veteran has a scar associated with his low back disability. However, the medical evidence of records reflects that the scar does not affect the head, face or neck, is not deep or nonlinear, does not affect an area of 144 square inches or more, and is not unstable or painful. 38 C.F.R. § 4.118, Diagnostic Codes 7800-7801. As such, a separate compensable rating for the  low back scar is not warranted.

All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against an increased rating in excess of 20 percent prior to July 30, 2014 for the  low back disability. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim for an increased rating prior to July 30, 2014 is denied. However, based on the evidence of record an increased rating of 40 percent, but no higher, from July 30, 2014 forward is warranted.

B. Bilateral Lower Extremity Radiculopathy

The Veteran's left and right leg radiculopathy are currently rated under Diagnostic Code 8520, covering impairment of the sciatic nerve. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. 

As an initial matter, when service connection for the low back disability was initially granted, the disability was phrased as "herniated nucleus pulposus, L4-L5, operated, with secondary neuropathy." Based on the wording, it appears that service connection for the associated right and left lower extremity neuropathy was also granted at the same time as the low back disability, but that these disabilities were combined with the low back disability as they were noncompensable at the time of the grant. Thus, service connection for the right and left lower extremity radiculopathy has been in effect since the August 1956 grant of service connection for the low back, albeit at a noncompensable level.

The right and left lower extremity radiculopathy were not separated out and rated until the February 2016 rating decision that granted 10 percent ratings for each disability, effective January 26, 2012. This grant does not span the entirety of the appeal (i.e., from the date of the Veteran's claim for increase on July 28, 2009). As such, the issue currently on appeal is entitlement to a compensable rating prior to January 26, 2012, and then entitlement to an increased rating in excess of 10 percent thereafter for right and left lower extremity radiculopathy.

Under Diagnostic Code 8520, a 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve. Id. A 20 percent rating is warranted for moderate incomplete paralysis of the sciatic nerve, a 40 percent rating is warranted for moderately severe incomplete paralysis, and a 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. Id. An 80 percent rating is warranted for complete paralysis of the sciatic nerve where the foot dangles and drops, no active movement of muscles below the knee is possible, and flexion of the knee is weakened or lost. Id.

Diseases of the peripheral nerves are rated based on the degree of paralysis, neuritis, or neuralgia. The term "incomplete paralysis" indicates a degree of impaired function substantially less than the type of picture for "complete paralysis" given for each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves, Note. When the involvement is wholly sensory, the rating for incomplete paralysis should be for the mild, or, at most, the moderate degree. Id.

Neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe incomplete paralysis. 38 C.F.R. § 4.123. The maximum rating which may be assigned for neuritis not characterized by such organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Tic douloureux may be rated up to complete paralysis of the affected nerve. 38 C.F.R. § 4.124.

The terms "slight," "moderate," and "severe" are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to arrive at a just and equitable decision. Additionally, the use of such terminology by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6.

During the period on appeal, the Veteran has complained of pain, weakness and a burning sensation in his legs, all of which he is competent to report. Jandreau, 492 F.3d 1372. There is no evidence that these statements are not credible, and therefor they are entitled to probative weight.

Turning to the medical evidence, the Veteran was provided with neurological examinations in October 2009 and January 2012 in conjunction with his low back examinations. The October 2009 examiner noted decreased sensation to touch and pinprick at right S1. Deep tendon reflexes were normal bilaterally, and muscle power was 5/5 bilaterally. An altered gait was present, although heel, toe and hop testing were okay.

The January 2012 examiner noted complaints of mild right lower extremity intermittent pain and moderate right lower extremity numbness. Muscle strength was found to be 5/5 bilaterally, with no muscle atrophy. Deep tendon reflexes were absent in the right ankle, decreased in the left ankle, and normal in both knees. The right lower leg and ankle were found to have decreased sensation to light touch, but all other areas were normal. Gait was noted to be altered, with a right sided limp. The Veteran was unable to perform a heel / toe or tandem walk. Overall, the examiner endorsed mild incomplete paralysis of sciatic nerve in the right lower extremity, and indicated that the left lower extremity was normal. No other nerves or radicular groups were noted as being impaired in any way.

There is no evidence that the examiners were not competent or credible, and as the reports are based on the Veteran's subjective account of his symptoms and the examiner's own observations, the Board finds they are entitled to significant probative weight as to the severity of the Veteran's bilateral lower extremity radiculopathy at the time of the examinations. Nieves-Rodriguez, 22 Vet. App. 295.

Also of record are several private low back evaluations which also assess his bilateral lower extremity radiculopathy. The December 10, 2012 evaluation noted that sensory loss, reflex changes, and atrophy were all present, and overall indicated that the Veteran had moderately severe right lower extremity radiculopathy. No level of severity for the left lower extremity was endorsed. The December 23, 2012 evaluation noted diminished deep tendon reflexes in the right knee, an altered gait, and bilateral weakness and paresthesias. The examiner indicated that the right calf measured 13 and a half inches and the left calf measured 13 and seven-eighths inches around (a difference of three-eighths of an inch), which the examiner stated was indicative of right calf atrophy.

The July 2, 2014 private treatment records noted reflex changes, muscle atrophy, abnormal gait and frequent pain. A loss of sensation in the Veteran's feet bilateral was specifically noted, and overall the examiner determined that the Veteran had moderate bilateral radiculopathy. The July 30, 2014 evaluation noted an abnormal gait and frequent pain. Overall the examiner noted the Veteran's left and right radiculopathy was moderate. 

VA and private treatment records are silent for any further assessments of the severity of the Veteran's left and right lower extremity radiculopathy. A September 2012 VA treatment record noted that bilateral lower extremity strength was normal, and a December 2013 private treatment record noted a normal gait and good muscle tone and strength. 

Based on the evidence of record, the Board finds that increased ratings of 10 percent, but no higher, from July 28, 2009, and 20 percent, but no higher, thereafter for left and right lower extremity radiculopathy are warranted in this case. 

Prior to December 10, 2012, (to include the period on appeal from July 28, 2009 to the date the RO granted 10 percent ratings in January 2012), the lay and medical evidence reflects symptoms that were sensory in nature, including numbness, intermittent pain, decreased sensation to light touch, and a decrease in reflexes bilaterally. Muscle strength, however, was consistently noted to be normal and there was no evidence of atrophy. The January 2012 VA examiner determined that overall these sensory manifestations resulted in mild incomplete paralysis of the sciatic nerve on the right side. While this evaluation was given only with respect to the right side and not the left, as the medical evidence for the period reflects largely similar symptomatology bilaterally, the assessment of the overall severity of the right-sided radiculopathy as mild by the January 2012 examiner is also probative of the overall severity of the left-sided radiculopathy. Based on this evidence, the Board finds that the Veteran's purely sensory manifestations warrant a 10 percent rating, but no higher, from July 28, 2009 for left and right lower extremity radiculopathy. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves, Note.

A rating in excess of 10 percent for left and right lower extremity radiculopathy for this period is not warranted. The Veteran's sensory symptomatology was described by the October 2009 and January 2012 VA examiners as being only mild overall with respect to the right leg, despite the notation of moderate numbness in the right lower extremity. There is no evidence of physical manifestations in either lower extremity prior to December 10, 2012, such as atrophy or muscle weakness. Further, there is no lay or medical evidence of moderate or severe sensory manifestations, such as numbness, paresthesias or pain. As such, an increased rating in excess of the 10 percent granted herein for the Veteran's right and left lower extremity radiculopathy is not warranted, as his symptoms do not more nearly approximate the level of severity contemplated by moderate incomplete paralysis of the sciatic nerve. Id.

From December 10, 2012 forward, the medical evidence reflects that, in addition to the on-going sensory impairments, such as pain, numbness and burning sensations, the Veteran's left and right lower extremity radiculopathy were also characterized by mild physical changes. Specifically, all four private evaluations, beginning with the December 10, 2012 evaluation, reflect that the Veteran's bilateral lower extremity radiculopathy was characterized by muscle atrophy. The December 23, 2012 private assessment provided measurements, indicating that the right calf had atrophied approximately three-eighths of an inch smaller when compared with the left calf. The other three evaluations only generally endorse the presence of atrophy. Both July 2014 evaluations indicated that overall, based on his symptoms, the Veteran's lower extremity radiculopathy was moderate bilaterally.

The Board finds that the mild physical manifestations, when coupled with the Veteran's previously noted sensory manifestations, results in his overall disability picture more nearly approximating the level of severity contemplated by a 20 percent rating for moderate incomplete paralysis of the sciatic nerve. Further, the July 2014 evaluations both characterized the overall level of impairment as moderate in nature. As such, an increased rating of 20 percent, but no higher, from December 10, 2012 forward for right and left lower extremity radiculopathy is warranted in this case. 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520. 

An increased rating in excess of the 20 percent rating from December 10, 2012 forward granted herein is not warranted. As noted, both July 2014 assessments indicate that, despite the presence of atrophy and based on the same symptoms noted in the December 2012 evaluations, the left and right radiculopathy was moderate in nature. Further, based on the measurements provided in the December 23, 2012 evaluation, the  right-sided muscle atrophy during this period appears to have been mild in nature, with only a three-eighths of an inch difference in size between the right and left calves. As such, the evidence of record indicates that the physical manifestations accompanying the Veteran's left and right radiculopathy, while present, are slight in nature. 

While the Board notes that the December 10, 2012 evaluation noted the Veteran's right lower extremity radiculopathy to be moderately severe in nature, the Board finds that this assessment is outweighed by the other evidence of record during this period, all of which reflects mild to moderate physical and sensory impairment affecting the lower extremities bilaterally. As such, the Board finds that the Veteran's overall disability picture does not more nearly approximate the level of severity contemplated by a 40 percent rating for moderately severe incomplete paralysis of the sciatic nerve. 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520.

No additional higher or alternative ratings under different Diagnostic Codes can be applied in this case during either period addressed above. None of the medical evidence of record reflects impairment of any other nerves in either lower extremity. 38 C.F.R. § 4.124a, Diagnostic Codes 8521-8530. For the reasons noted above, increased ratings based on neuralgia and neuritis, which utilize the rating schedule for disabilities of the peripheral nerves as well, are not warranted in this case. 38 C.F.R. §§ 4.123, 4.124. There is no evidence of tic douloureux. 38 C.F.R. § 4.124.

All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Based on the evidence of record the Board finds that increased ratings of 10 percent, but no higher, from July 28, 2009 to December 10, 2012, and of 20 percent, but no higher, thereafter for right and left lower extremity radiculopathy are warranted. Hart, 21 Vet. App. at 509-10.

C. Constipation

The Veteran's constipation is currently rated at 10 percent under Diagnostic Code 7319, governing irritable colon syndrome. 38 C.F.R. § 4.114, Diagnostic Code 7319. Under Diagnostic Code 7319, a 10 percent rating is warranted for moderate irritable colon syndrome with frequent episodes of bowel disturbance and with abdominal distress. Id. A 30 percent rating is warranted for severe irritable colon syndrome with diarrhea or alternating diarrhea and constipation, and with more or less constant abdominal distress. Id.

Throughout the period on appeal, the Veteran has reported chronic constipation and abdominal pain and distress, which he is competent to report. Jandreau, 492 F.3d 1372. There is no evidence that the statements are not credible, and therefore they are entitled to probative weight. 

Turning to the medical evidence, treatment records from the period on appeal generally reflect complaints of abdominal discomfort and chronic constipation. A September 2012 VA treatment record notes subjective complaints of chronic constipation since service, which had been worsening over the past several months. A separate September 2012 VA treatment note also reflected an increased severity of constipation, although this also noted that it was improving with treatment. 

An October 2012 record noted worsening constipation for one month prior, which had resolved with treatment. A December 2013 private treatment record noted subjective complaints of epigastric pain, chronic constipation and abdominal discomfort. The physician noted mild epigastric discomfort and a non-tender abdomen. Treatment records are wholly silent for any evidence that the Veteran's gastrointestinal issues are manifested by diarrhea. No further treatment for the Veteran's constipation is of record.

Based on the evidence of record, the Board finds that an increased rating in excess of 10 percent for constipation is not warranted in this case. There is no lay or medical evidence that the Veteran's bowel impairment is manifested by diarrhea of any frequency at all, or by alternating diarrhea and constipation. Further, the VA and private treatment records reflect that the Veteran's complaints of constipation and abdominal distress improve with treatments such as stool softener, prune juice and other remedies. As the medical indicates that the Veteran's constipation will worsen and then improve with treatment, it cannot be stated that the Veteran experiences constant abdominal distress as contemplated by a 30 percent rating. As such, the Board finds that an increased rating in excess of 30 percent 

III. Extra-Schedular Ratings

Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, 572 F.3d 1366 (Fed. Cir. 2009). The first element requires a finding that the evidence "presents such an exceptional or unusual disability picture that the available schedular evaluations for that service-connected disability are inadequate." See id. at 115. In order to determine whether a disability is "exceptional or unusual," there "must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability." Id. "[I]f the [rating] criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, [and] the assigned schedular evaluation is, therefore adequate, and no referral is required." Id.



A. Low Back

The first Thun element is not satisfied here. The Veteran's service-connected low back disability is manifested by pain, weakness, incoordination, tenderness, instability of station, flare-ups of variable severity and frequency, altered gait, limitations on standing and walking and objective evidence of pain at 30 degrees or less. These signs and symptoms, and their resulting impairment, are specifically contemplated by the rating schedule as part of the schedule of ratings for the musculoskeletal system. See 38 C.F.R. § 4.71a, Diagnostic Code 5276. 

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 v. Shinseki, 25 Vet. App. 32, 37 (2011). 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, as the currently assigned ratings fully contemplate the functional and range of motion impairments attributable to subjective complaints such as pain and incoordination. In short, there is nothing exceptional or unusual about the Veteran's low back disability as the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet. App. at 115. Therefore, referral for extraschedular consideration is not warranted in this case.

B. Bilateral Radiculopathy

The first Thun element has not been met. The Veteran's service-connected right and left lower extremity radiculopathy are manifested by pain, numbness, burning sensations, loss of sensation in the foot, abnormal gait, decreased reflexes and weakness. These signs and symptoms, and their resulting impairment, are specifically contemplated by the rating schedule as part of the Rating Schedule for Diseases of the Peripheral Nerves. See 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. In summary, the schedular criteria for nerve disabilities contemplate a wide variety of manifestations.

Given the variety of ways in which the rating schedule contemplates impairment due to nerve disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture as the criteria contemplate the overall severity of the neurological disorders based on the subjective and objective symptomatology associated therewith. In short, there is nothing exceptional about the Veteran's left and right lower extremity radiculopathy as the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet. App. at 115. Therefore, extraschedular referral is not warranted in this case.

C. Constipation

The first Thun element has not been met. The Veteran's service-connected constipation is manifested by abdominal distress, abdominal pain, and constipation.. These signs and symptoms, and their resulting impairment, are specifically contemplated by the rating schedule as part of the rating schedule for the digestive system. See 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. The schedular criteria for nerve disabilities contemplate a wide variety of manifestations, including severity of abdominal distress and frequency of constipation.

Given the variety of ways in which the rating schedule contemplates impairment due to nerve disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture as the criteria contemplated both the frequency and severity of the Veteran's symptomatology associated with the bowel impairment. In short, there is nothing exceptional about the Veteran's constipation as the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet. App. at 115. Therefore, extraschedular referral is not warranted in this case.
D. Johnson v. McDonald

Finally, a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. Johnson v. McDonald, 762 F.3d 1362 (2014). In this case, the Veteran is service connected for a low back disability, cystitis, constipation, bilateral lower extremity radiculopathy, hemorrhoids, and prostatitis. The Veteran has not alleged that his currently service-connected disabilities combine to result in additional disability or symptomatology that is not already contemplated by the rating criteria for each individual disability.

Further, there is no medical evidence indicating that the Veteran's low back disability, bilateral lower extremity radiculopathy or constipation combine or interact either with one another or his other service-connected disabilities in such a way as to result in further disabilities, functional impairment, or additional symptomatology not accounted for by the rating criteria applicable to each disability individually. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions.


ORDER

Entitlement to an increased rating in excess of 20 percent prior to July 30, 2014 for a low back disability is denied.

Entitlement to an increased rating of 40 percent, but not higher, from July 30, 2014 forward for a low back disability is granted, subject to the law and regulations governing the award of monetary benefits.

Entitlement to a rating of 10 percent, but no higher, from July 28, 2009 to December 20, 2012 for left lower extremity radiculopathy is granted, subject to the law and regulations governing the award of monetary benefits.
Entitlement to a rating of 20 percent from December 20, 2012 forward for left lower extremity radiculopathy is granted, subject to the law and regulations governing the award of monetary benefits.

Entitlement to a rating of 10 percent, but no higher, from July 28, 2009 to December 20, 2012 for right lower extremity radiculopathy is granted, subject to the law and regulations governing the award of monetary benefits.

Entitlement to a rating of 20 percent from December 20, 2012 forward for right lower extremity radiculopathy is granted, subject to the law and regulations governing the award of monetary benefits.

Entitlement to an increased rating in excess of 10 percent for constipation is denied.


REMAND

The duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. See 38 C.F.R. § 3.159(c)(4). Concerning the claims for service connection for a left hand and left wrist disabilities, treatment records reflect a current diagnosis of a left wrist disability and recurrent complaints of left hand symptomatology.  Service treatment records reflect a November 1954 fall in service, and the Veteran has asserted that his left hand and wrist symptoms have been consistent since the fall.  There is insufficient medical evidence of record to otherwise decide the claim. As such, the Board must remand the issues for a medical opinion to determine the nature and etiology of the claimed left hand and left wrist disabilities. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4), McLendon v. Nicholson, 20 Vet. App. 79 (2006).

As determinations with respect to and service connection claims would materially affect a determination with respect to TDIU, the issue of entitlement to TDIU is inextricably intertwined with the other issues remanded herein, and must also be remanded. Harris v. Derwinski, 1 Vet. App. 180 (1991).

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.)

1. Appropriate efforts should be made to obtain and associate with the case file any further medical records (private and/or VA) identified and authorized for release by the Veteran.

All actions to obtain the records should be documented. If the records cannot be located or do not exist, a memorandum of unavailability should be associated with the claims file, and the Veteran should be notified and given an opportunity to provide them.

2. Schedule the Veteran for a VA examination with a medical professional of sufficient expertise to determine the nature and etiology of the Veteran's claimed left wrist and left hand disabilities. The electronic claims file must be made available to and reviewed by the examiner, and a note that it was reviewed should be included in the report. After reviewing the claims file and examining the Veteran, the examiner should answer the following questions:

Concerning the left hand:

a) Does the Veteran have a current left hand disability underlying his complaints of left hand numbness, pain and tingling?

b) If so, is it at least as likely as not (a fifty percent probability or greater) that the noted left hand disability is related to his active duty service, to include a November 1954 fall in service?

Concerning the left wrist:

a) Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's left wrist disability, to include traumatic arthritis, is related to his active duty service, including a November 1954 fall?

Review of the entire claims file is required; however, attention is invited to a March 1955 service treatment records noting a fall in service (VBMS, document labeled STR - Medical, receipt date 04/12/16); a July 2011 VA treatment record showing complaints of left hand numbness (VBMS, document labeled Medical Treatment Record - Government Facility, receipt date 09/25/12); and a March 2010 treatment record containing a diagnosis of left wrist traumatic arthritis (VBMS, document labeled Medical Treatment Record - Government Facility, receipt date 09/25/12).

The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached.  The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it.

3. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond.

The appellant has the right to submit additional evidence and argument on the 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).



_________________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs