Citation Nr: 1735704 Decision Date: 08/29/17 Archive Date: 09/06/17 DOCKET NO. 11-26 347 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an increased rating in excess of 20 percent, prior to August 25, 2016, and 40 percent thereafter for the service-connected lumbar spine disability. 2. Entitlement to a compensable rating for bilateral hearing loss. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. M. Georgiev, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1966 to August 1969 and November 1988 to June 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal of July 2010 and August 2011 rating decisions of the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA). By June 2017 rating decision, the Veteran's low back disability was increased from 20 to 40 percent effective August 2016. The appeal continues as this was not a complete grant of benefits. See A.B. v. Brown, 6 Vet. App. 35, 39 (1993) (the claimant is presumed to be seeking the highest possible rating for a disability unless he or she expressly indicates otherwise). The issues of increased rating for left ear hearing loss and entitlement to a 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 August 2016, there is no evidence that the Veteran's low back disability manifested with ankylosis, incapacitating episodes, or forward flexion of the thoracolumbar spine 30 degrees or less. 2. As of August 2016, there is no evidence that the Veteran's low back disability manifested with ankylosis or incapacitating episodes. 3. During the appeal period, evidence of record shows that the Veteran's right ear hearing loss has been manifested by no more than Level II hearing acuity. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for the Veteran's service-connected low back disability, prior to August 25, 2016 and 40 percent thereafter have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.71a, Diagnostic Codes (DC) 5235 to 5243 (2016). 2. The criteria for a disability rating in excess of noncompensable for the Veteran's service-connected right ear hearing loss disability are not met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321, 4.118, Diagnostic Code 6100 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) An April 2010 letter provided proper notice with regard to the increased ratings claims. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board also concludes that VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the Veteran's claim file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has not referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The United States Court of Appeals for Veterans Claims (Court) has also held that VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2014). In this case, several VA examinations were conducted in regard to the low back and right ear hearing loss increased rating claims. The Board finds the examination reports, when considered together, to be thorough and complete and sufficient upon which to base a decision with regard to this claim. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). These examinations, along with the remaining evidence of record, contain sufficient findings to rate the Veteran's service-connected disabilities under the appropriate diagnostic criteria. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Increased Rating Legal Criteria Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2014). Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2016). The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2016). VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath, 1 Vet. App. at 589. The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Court has held that a veteran may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. The Court has acknowledged, however, that when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different Diagnostic Codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). Low Back Disability Legal Criteria The Veteran's lumbar spine disability has been evaluated under the general rating formula for disease and injuries of the spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. The general rating formula (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 is rated as follows: Unfavorable ankylosis of the entire spine (100 percent); Unfavorable ankylosis of the entire thoracolumbar (50 percent); Unfavorable ankylosis of the entire cervical spine; or forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine (40 percent); Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine (30 percent); Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis (20 percent); Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height (10 percent); Normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees and left and right lateral rotation are 0 to 30 degrees. The normal combined range of motion for the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2016). Intervertebral disc syndrome (IVDS) is evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243. There is no indication that the Veteran experiences or has experienced, for the pendency of this appeal, incapacitating episodes due to his low back condition. As such, this criterion does not apply. In determining the degree of limitation of motion for musculoskeletal disabilities, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Facts and Analysis The Veteran claimed an increased in his low back disability in February 2010, from which he is rated at 20 percent. The rating was increased to 40 percent from August 2016. The Veteran is separately rated for radiculopathy of the lower extremities associated with low back disability and those ratings are not on appeal. The Veteran appeared for a VA examination in May 2010. His back revealed mid lumbar tenderness. He had forward flexion from 45 degrees with pain to 66 degrees, extension from 25 degrees, lateral flexion from 30 degrees, lateral rotation from 55 degrees to the left, 84 degrees to the right. Straight leg raising on the left was 25 degrees with back pain to 50 degrees, 15 degrees with back pain to 35 degrees. No DeLuca criteria were noted with repetitive motion. Lumbosacral spine x-ray showed intervertebral osteochondrosis at L4-L5 and L5 S1. A MRI revealed impression of lumbar disk disease specifically at L4-L5 and L5-S1 with concentric disk bulges and central canal stenosis with degenerative changes of the facet joints and hypertrophy of the ligament flavum. The Veteran appeared for a VA examination in June 2013. Diagnosis was lumbar osteoarthritis. The Veteran reported pain and daily flare-ups, of increased pain, stiffness, and muscle spasms, which decrease his activity level, sometimes lasting all day. Forward flexion was 90 degrees or greater, extension was 25 degrees, right lateral flexion was 30 degrees or greater, left lateral flexion was 25 degrees, right lateral rotation was 30 degrees or greater, left lateral rotation was 25 degrees. There was no objective evidence of painful motion. After three repetitions, forward flexion was 90 degrees or greater, extension was 20 degrees, right lateral flexion was 30 degrees or greater, left lateral flexion was 30 degrees, right lateral rotation was 30 degrees or greater, left lateral rotation was 20 degrees. Functional loss was less movement, pain on movement, and stiffness. IVDS of the low back was noted with no incapacitating episodes. The Veteran reported occasional use of a cane. The examiner concluded that Veteran was able to do sedentary work with no prolonged sitting or standing, and change of positions every 30 minutes. He has additional limitations on lifting/ carrying and bending. In August 2016, the Veteran filed an intent to file claim, and in September 2016, he indicated that his low back disability had worsened significantly. The Veteran appeared for a VA examination in March 2017. Spinal stenosis was noted as a worsening of the Veteran's low back condition. The Veteran reported flare ups of the back which can be described as limited mobility, pain (severe) which radiates. Forward flexion was 25 degrees, extension was 15 degrees, right lateral flexion was 20 degrees, left lateral flexion was 15 degrees, right lateral rotation was 25 degrees, left lateral rotation was 20 degrees. The Veteran exhibited pain on left lateral flexion and left lateral rotation. Pain and fatigue were noted as causing functional loss. In terms of range of motion for repeated use over time, the functional loss was noted as forward flexion was 20 degrees, extension was 15 degrees, right lateral flexion was 20 degrees, left lateral flexion was 15 degrees, right lateral rotation was 20 degrees or greater, left lateral rotation was 15 degrees. In terms of range of motion for flare-ups, the functional loss was noted as forward flexion was 15 degrees, extension was 10 degrees, right lateral flexion was 15 degrees, left lateral flexion was 15 degrees, right lateral rotation was 15 degrees, left lateral rotation was 15 degrees. Muscle spasms were noted, as well as localized tenderness and guarding resulting in abnormal gait or abnormal spine contour. There was objective evidence of pain on passive range of motion testing of the back. There was objective evidence of pain on non-weight bearing testing of the back. There examiner found no ankylosis and no IVDS of the spine. The Veteran reported occasional use of a cane. The examiner stated that the Veteran is unable to stand or sit for extended periods of time due to the low back disability, impacting his ability to work. In this case, the Board finds no increase in excess of 20 percent warranted before August 2016 or 40 percent thereafter. May 2010 and June 2013 VA examinations do not support an increased rating in excess of 20 percent. No ankylosis is found and forward flexion of the thoracolumbar spine does not reflect as 30 degrees or less. There are no incapacitating episodes. Functional loss is not present to the extent to warrant additional rating under Deluca. In May 2010, no DeLuca criteria were noted with repetitive motion. In June 2013, the Veteran reported pain and daily flare-ups, of increased pain, stiffness, and muscle spasms, which decrease his activity level, sometimes lasting all day. However, there is no indication that 20 percent is inadequate to encompass the additional functional loss present upon flare-ups for this period of time. After three repetitions, forward flexion was 90 degrees or greater, extension was 20 degrees, right lateral flexion was 30 degrees or greater, left lateral flexion was 30 degrees, right lateral rotation was 30 degrees or greater, left lateral rotation was 20 degrees. As previously noted, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees and left and right lateral rotation are 0 to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2016). In August 2016, the Veteran filed an intent to file claim, and in September 2016, he indicated that his low back disability had worsened significantly. Giving the Veteran the benefit of the doubt, the AOJ rated the Veteran's disability as 40 percent disabling from August 2016, based on the information contained in the March 2017 VA examination. There is no basis for a rating in excess of 40 percent from August 2016 onward. The March 2017 examination finds no ankylosis and there is no indication of ankylosis to warrant 50 or 100 percent ratings under Diagnostic Codes 5235 to 5243. There are no incapacitating episodes noted. Regarding Deluca, a higher rating based on functional loss may not exceed the highest rating available under the applicable diagnostic code(s) pertaining to range of motion. Johnston v. Brown, 10 Vet. App. 80 (1997). Here, a 40 percent evaluation represents the maximum possible evaluation for a lumbar spine disability based on limitation of motion under the General rating Formula. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. Accordingly, a higher rating under the DeLuca criteria based on functional loss is not available. In sum, the Board finds the preponderance of the evidence is against the claim for a rating in excess of 20 percent for the service-connected lumbar spine disability before August 2016 and 40 percent thereafter. Thus, the benefit of the doubt doctrine is not for application. Right Ear Hearing Loss Disability Legal Criteria Under Diagnostic Code 6100, the assignment of disability ratings for service-connected hearing impairment is derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Evaluations for defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000, and 4,000 Hertz. The Rating Schedule establishes eleven auditory acuity levels designated from Level I to Level XI for profound deafness. 38 C.F.R. § 4.85. Facts and Analysis The Veteran requests an evaluation higher than noncompensable for his service-connected right ear hearing loss. The Veteran appeared for VA examinations, detailed below, during the pendency of this appeal, which support that a higher rating is not warranted. The Veteran's May 2010 VA examination showed puretone thresholds, in decibels, as follows: Frequency: (Hertz) 1000 2000 3000 4000 Average Left: (decibel) 20 25 55 50 37.5 Right: (decibel) 20 35 55 50 40 Maryland CNC testing revealed speech recognition ability of 96 percent in the right ear and 98 percent in the left ear. The Veteran reported poor social interactions due to hearing difficulty. From Table VI of 38 CFR 4.85, Roman Numeral I is derived for both ears. This is determined by intersecting the percent of speech discrimination row with the puretone threshold average column. Using the Veteran's right ear as the poorer ear for 38 CFR 4.85's Table VII, a 0 percent evaluation is derived from Table VII. In certain situations, the Rating Schedule provides for rating exceptional patterns of hearing impairment. 38 C.F.R. § 4.86 (2016). When the pure tone thresholds at the four specified frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz are 55 decibels or more, or when the pure tone thresholds are 30 decibels or less at 1,000 Hertz and 70 decibels or more at 2,000 Hertz, the Roman numeral designation for hearing impairment will be determined from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next highest Roman numeral. Id. Here, there is no exceptional pattern of hearing impairment shown. The Veteran's June 2013 VA examination showed puretone thresholds, in decibels, as follows: Frequency: (Hertz) 1000 2000 3000 4000 Average Left: (decibel) 20 25 60 50 39 Right: (decibel) 15 30 55 55 39 Maryland CNC testing revealed speech recognition ability of 96 percent in the right ear and 96 percent in the left ear. The examiner noted that the Veteran was not unemployable due to hearing loss. The Veteran may have difficulty hearing when he cannot see the speaker's face, on the phone, and in background noise. From Table VI of 38 CFR 4.85, Roman Numeral I is derived for both ears. This is determined by intersecting the percent of speech discrimination row with the puretone threshold average column. Using the Veteran's right ear as the poorer ear for 38 CFR 4.85's Table VII, a 0 percent evaluation is derived from Table VII. There is no exceptional pattern of hearing impairment shown. The Veteran's January 2014 VA examination showed puretone thresholds, in decibels, as follows: Frequency: (Hertz) 1000 2000 3000 4000 Average Left: (decibel) 10 25 60 55 38 Right: (decibel) 15 30 50 50 36 Maryland CNC testing revealed speech recognition ability of 96 percent in the right ear and 92 percent in the left ear. From Table VI of 38 CFR 4.85, Roman Numeral I is derived for both ears. This is determined by intersecting the percent of speech discrimination row with the puretone threshold average column. Using the Veteran's right ear as the poorer ear for 38 CFR 4.85's Table VII, a 0 percent evaluation is derived from Table VII. There is no exceptional pattern of hearing impairment shown. The Veteran's March 2017 VA examination showed puretone thresholds, in decibels, as follows: Frequency: (Hertz) 1000 2000 3000 4000 Average Left: (decibel) 25 40 65 60 47.5 Right: (decibel) 30 55 65 70 55 Maryland CNC testing revealed speech recognition ability of 90 percent in the right ear and 92 percent in the left ear. The Veteran reported needed hearing aids regularly, needing words loud and repeated. He misses conversations and has issues with understanding what people are saying. From Table VI of 38 CFR 4.85, Roman Numeral I is derived for the left ear and Roman Numeral II is derived for the right ear. This is determined by intersecting the percent of speech discrimination row with the puretone threshold average column. Using the Veteran's right ear as the poorer ear for 38 CFR 4.85's Table VII, a 0 percent evaluation is derived from Table VII. There is no exceptional pattern of hearing impairment shown. Thus, based on the audiometric findings, an initial compensable evaluation for the Veteran's service-connected right ear hearing disability is not warranted. In Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007) the Court held that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. In the May 2010 VA examination report, the examiner noted that the Veteran's service-connected right ear hearing loss caused poor social interactions. Similarly, the June 2013 VA examiner commented that the Veteran has difficulty hearing on the telephone and during background noise. At the March 2017 VA examination, the examiner reported that the Veteran has issues with understanding conversations. He has to use close caption on a television, and without hearing aids, he cannot hear much at all. Everything has to be repeated and with a loud voice. As noted above, the Veteran's symptoms are not productive of, or consistent with, the criteria for a compensable rating. The Board has duly considered staged ratings, pursuant to Hart, supra, but finds the 0 percent rating assigned is appropriate for the entire rating period. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's increased initial rating claim for service-connected right ear hearing loss disability, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an increased rating for lumbar spine disability, in excess of 20 percent, prior to August 25, 2016. and 40 percent thereafter is denied. Entitlement to a compensable rating for right ear hearing loss is denied. REMAND Left Ear Hearing Loss The AOJ entered a SOC and has treated the issue of entitlement to an increased rating for the left ear hearing loss as on appeal. However, service connection for hearing loss in the left ear was not granted until an August 2011 rating decision. The Veteran did not file a Notice of Disagreement before the August 2011 SOC, for which the Veteran perfected an appeal, was entered. While the Board may waive the issue of the timeliness of a substantive appeal, an untimely notice of disagreement is a jurisdictional bar to appellate consideration, and the issue may not be waived. Percy v. Shinseki, 23 Vet. App. 37 (2009). The Board finds that the September 2011 Substantive Appeal does constitute a NOD as to the issue of left ear hearing loss, however, as the Veteran stated that his hearing loss should be rated at a compensable rate. See Palmer v. Nicholson, 21 Vet. App. 434, 437 (2007) (VA is liberal in determining what constitutes a notice of disagreement). This statement was a reiteration of a statement the Veteran submitted in early August 2011, in which he stated that he should be rated higher in both ears. Therefore, as there is a timely NOD of record, the AOJ is requested to enter a SOC such that the Veteran has the opportunity to perfect an appeal as to the left ear hearing loss. While there was an SOC entered in August 2011, as stated above, this SOC was inadequate such to give the Veteran the opportunity to appeal the claim. If a claimant files a notice of disagreement and the RO does not issue a statement of the case, the Board must remand the claim so that a statement of the case can be issued. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). TDIU The Veteran has indicated he is unable to work due to his service connected disabilities. As such, the Board finds the issue of entitlement to a TDIU raised with the increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU, either expressly raised by the Veteran or reasonably raised by the record, is part of the claim for an increased rating. Social Security Administration (SSA) records reflect that the Veteran's primary disability is his low back disability. An October 2010 private opinion states that the Veteran is unable to work due to chronic pain and anxiety from traumatic injuries to the spine, shoulder and knee. As this opinion contains non-service connected disabilities, and it is unclear currently the joint impact of service-connected disabilities on the Veteran's employability, a VA examination for a TDIU is required. Accordingly, the case is REMANDED for the following action: 1. Issue a statement of the case (SOC) on the issue of increased rating for left ear hearing loss disability. The Veteran must be advised of the time limit for filing a substantive appeal. 38 C.F.R. § 20.302(b). The Veteran is advised that the Board may exercise appellate jurisdiction over these issues only if he files a timely substantive appeal. Then, only if the appeal is timely perfected, this issue is to be returned to the Board for further appellate consideration, if otherwise in order. 2. Send the claims file to an appropriate VA examiner to provide an opinion with respect to the Veteran's employability. The Veteran's claims file, including any pertinent evidence contained in electronic files, should be forwarded to the examiner for review in conjunction with the examination, and the examiner should indicate it has been reviewed. In the report of the examination, the examiner should assess the functional impairment caused by the Veteran's service-connected disabilities, both singularly and jointly, on his ordinary activities, to include his employability, taking into consideration his level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities. The claims file must be properly documented regarding any notifications to the Veteran as to the scheduled examination. The examination reports must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. When the above has been completed, the case should again be reviewed by the RO or the AMC. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC), and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claims 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). ______________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs