Citation Nr: 1740323 Decision Date: 09/18/17 Archive Date: 09/29/17 DOCKET NO. 10-07 980 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for service-connected low back disability prior to September 30, 2016 and in excess of 40 percent therefrom. 2. Entitlement to an effective date earlier than October 6, 2011, for the award of service connection for right lower extremity (RLE) radiculopathy. 3. Entitlement to an initial rating in excess of 30 percent for service-connected adjustment disorder with depression and anxiety. 4. Entitlement to an effective date earlier than March 23, 2012, for the award of service connection for adjustment disorder with depression and anxiety. 5. Whether new and material evidence has been submitted to reopen the claim for service connection for a neck disorder. 6. Entitlement to an initial rating in excess of 10 percent for service-connected left lower extremity (LLE) radiculopathy. 7. Entitlement to an effective date earlier than January 24, 2012, for the award of service connection for LLE radiculopathy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and D.J. ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from September 1983 to September 1989. These matters are before the Board of Veterans' Appeals (Board) on appeal, in part, from a July 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. By that rating action, the RO granted service connection for a low back disability; an initial 20 percent rating was assigned, effective January 30, 2008--the date the Veteran's initial claim for compensation for this disability was received. The Veteran appealed the initial 20 percent rating assigned to the service-connected low back disability to the Board. By rating decision of November 2016, the initial rating for his low back disability was increased from 20 percent to 40 percent, effective September 30, 2016. The United States Court of Appeals for Veterans Claims (Court) indicated that a claimant will generally be presumed to be seeking the maximum benefits allowed by law and regulations, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1992). Therefore, the issue of an initial increased rating for the Veteran's low back disability is still in appellate status. Jurisdiction of the appeal currently resides with the RO in St. Petersburg, Florida. By an October 2014 rating action, the RO granted service connection for right lower extremity (RLE) radiculopathy; an initial 20 percent disability rating was assigned, effective October 6, 2011, the first date the disability was shown by objective evidence. (See October 2014 rating action). The Veteran did not appeal the initial 20 percent rating assigned to this disability. Regarding the effective date of October 6, 2011, the RO indicated that because it was not being granted for the duration of the appeal (i.e., from the date of claim--September 29, 2008), that the effective date issue for the award of service connection for RLE radiculopathy remained on appeal. The RO included the issue of entitlement to an effective date earlier than October 6, 2011 for the award of service connection for RLE radiculopathy as secondary to the service-connected low back disability in an October 2014 SSOC. (See SSOC issued on October 16, 2014). Thus, as VA has taken action to indicate that the effective date for the award of service connection for RLE radiculopathy is currently on appeal, the Board will accept jurisdiction in this matter. Percy v. Shinseki, 23 Vet. App. 37,45 (2009). In February 2016, the Veteran and his spouse testified before the undersigned at a videoconference hearing conducted via the St. Petersburg, Florida RO. A copy of the hearing transcript is of record. At the hearing, as well as in April 2016, the Veteran submitted additional evidence in support of his appeal along with a waiver of initial RO consideration. Thus, a remand to have the RO initially consider this evidence in the first instance is not required. 38 C.F.R. § 20.1304 (2016). The Board, in a decision of June 2016, denied an effective date earlier than October 6, 2011 for the award of service connection for RLE radiculopathy. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a February 2017 Joint Motion for Partial Remand, the parties requested that the Court vacate the portion of the Board's decision that denied the claim of an effective date earlier than October 16, 2011 for service connection for RLE radiculopathy. In a March 2017 Order, the Court vacated the portion of the Board's June 2016 decision which denied the claim of an effective date earlier than October 16, 2011 for service connection for RLE radiculopathy, and remanded the matter for further consideration and instructions consistent with the February 2017 Joint Motion for Partial Remand. Service connection for LLE radiculopathy (originally claimed as left leg, left foot, and buttocks disorders), to include as secondary to the service-connected low back disability and service connection for Reiter's syndrome have been granted, and are no longer on appeal. A September 2015 rating decision granted service connection for adjustment disorder with depression and anxiety, evaluated as 30 percent disabling, effective March 23, 2012. The Veteran was provided with notice of the action taken in October 2015. He filed a notice of disagreement later (NOD) that month as to the effective date for the grant of service connection and effective date, and a statement of the case (SOC) was issued in June 2016. He filed a substantive appeal in July 2016. Thus, these issues are properly before the Board. In May 2016, new and material evidence to reopen the claim for a neck disorder was denied. Notice was provided that same month, and a NOD was filed at that same time. In August 2016, the Veteran filed a NOD to the 10 percent initial rating for LLE radiculopathy, and to an effective date earlier than January 24, 2012, for the same. No SOC has been furnished to the Veteran for these issues. As such, these claims must now be remanded to allow the agency of original jurisdiction (AOJ) to provide the Veteran with an appropriate SOC on each issue. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); see also Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995); Archbold v. Brown, 9 Vet. App. 124, 130 (1996). The issues of whether new and material evidence has been submitted to reopen the claim for service connection for a neck disorder, an increased initial rating in excess of 10 percent for the award of service connection for LLE radiculopathy, an effective date earlier than January 24, 2012, for LLE radiculopathy, an initial increased rating in excess of 30 percent for adjustment disorder with depression and anxiety, and an effective date earlier than March 23, 2012, for the award of service connection for adjustment disorder with depression and anxiety are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. Prior to September 30, 2016, the service-connected low back disability was not manifested by forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. 2. Since September 30, 2016, the service-connected low back disability is manifested by forward flexion of the thoracolumbar spine 30 degrees or less; unfavorable ankylosis of the entire thoracolumbar spine is not shown. 3. In September 15, 2008, the Veteran had difficulty with RLE sciatica. 4. The evidence of record shows that the Veteran had RLE radiculopathy on September 15, 2008. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 20 percent prior to September 30, 2016 for the service-connected low back disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.3 , 4.7, 4.59, 4.71a, Diagnostic Code (DC) 5237 (2016). 2. The criteria for an initial disability rating in excess of 40 percent from September 30, 2016 for the service-connected low back disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.59, 4.71a, DC 5237 (2016). 3. The criteria for entitlement to an effective date of September 15, 2008, for the grant of service connection for RLE radiculopathy have been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. §§ 3.156, 3.400 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). Initial rating claims and earlier effective date claims arose following the RO's award of service connection claims. Once service connection is granted, the claim is substantiated, additional VCAA notice is not required; and any defect is not prejudicial. Hartman v. Nichloson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Next, VA has a duty to assist a veteran in the development of a claim. This duty includes assisting him or her in the procurement of service treatment records, private treatment records and VA treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2016). The RO associated the Veteran's service treatment records, VA treatment records, and private treatment records with the claims file. No outstanding evidence has been identified. The Veteran was afforded VA examinations in connection with the claims. According to Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008), the probative value of a medical opinion depends upon whether it is factually accurate, fully articulated, and contains sound reasoning for the conclusion, not merely whether the claims file was reviewed. The Board finds the VA examinations were thorough and adequate upon which to base a decision. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to decide the claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination concerning the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). Further, the Veteran was provided an opportunity to set forth his contentions at a videoconference Board hearing in February 2016 before the undersigned VLJ. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veteran's Law Judge (VLJ) who chairs a hearing fulfill two duties to comply with the above 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 undersigned VLJ identified the issues on appeal. The current level of complaints regarding his low back disability was also addressed. The VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. See Bryant, 23 Vet. App. at 497. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and the Board can adjudicate the claims based on the current record. The outcome of the effective date claim adjudicated herein turns on interpretation of law and not disputed facts. There is no additional assistance that would be reasonably likely to aid in substantiating the claim. See Livesay v. Principi, 15 Vet. App. 165, 178 (2001); (holding that the VCAA was not applicable where the outcome is controlled by the law and the facts are not in dispute). The Board concludes that all available records and medical evidence have been obtained in order to make an adequate determination as to these claims. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Disability ratings are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When all of the evidence is assembled, VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In determining the level of impairment, the disability must be considered in the context of the whole recorded history. 38 C.F.R. §§ 4.2, 4.41 (2016). An evaluation of the level of disability present also includes consideration of the functional impairment of the appellant's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2016). When the appeal arises from an initial rating, as in the issues presently on appeal, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are also appropriate in increased rating claims, in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). With an already established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the United States Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Initial Increased Rating-Low Back Disability By rating decision of July 2008, service connection for low back disability was granted. A 20 percent rating was awarded effective January 30, 2008. By rating decision of November 2016, the 20 percent rating for low back disability was increased to 40 percent, effective September 30, 2016. This rating has been in effect since this time. The Veteran asserts that his low back disability is more severe than the current evaluations reflect. He claims that he is in daily pain. He is extremely stiff in the mornings, has severely limited range of motion, difficulty bending, and getting out of a chair triggers flare-ups. Under the general rating formula for diseases or injuries of the spine, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease: a 100 percent rating is provided for unfavorable ankylosis of the entire spine. A 50 percent evaluation is assigned when there is unfavorable ankylosis of the entire thoracolumbar spine; and a 40 percent evaluation is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the thoracolumbar spine. Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis warrants a 20 percent evaluation. 38 C.F.R. § 4.71a , Diagnostic Codes 5235 to 5243. The notes to the rating formula for diseases and injuries to the spine state that any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a 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. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, Note (2). Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Colayong v. West, 12 Vet App 524 (1999) (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONALRY (28TH Ed. 1994) at 86). Prior to September 2016, the Veteran had forward flexion of greater than 30 degrees but not greater than 60 degrees. He had spasm and forward flexion of 60 degrees at his VA examination of May 2008. X-ray examination of October 2009, showed muscle spasm, nonspecific degenerative arthritic changes associated with minute osteophyte projecting from the margins of the vertebral bodies. His November 2009 VA examination range of motion showed forward flexion of 50 degrees. In January 2012, VA examination revealed forward flexion of 60 degrees, extension of 5 degrees, pain and no intervertebral disc syndrome. In January 2016, J.O., MD, saw the Veteran privately. Extension was accomplished 30 degrees. He had muscle tenderness and spasm. In September 2016, the Veteran underwent a VA examination. Forward flexion was 10 degrees and extension was accomplished to 5 degrees. He had pain on weight bearing. There was no ankylosis. Finally, during his VA examination of May 2017, forward flexion of 10 degrees was reflected and he had no evidence of pain on weight bearing. He had muscle spasm resulting in abnormal gait or abnormal spinal contour. The Veteran and his spouse testified at a videoconference hearing before the undersigned VLJ in February 2016. The Veteran testified that his low back was worse. He stated that his back was extremely stiff in the morning. He related that he had a job at the time of the hearing that was not problematic, allowing him to work at home if he had problems with his back and couldn't go to work. He stated he was unable to ride a bicycle and he was unable to jog as he was previously able to do. He had gained weight because of his inactivity. He testified that he was constantly in pain and had last seen a doctor about his back 2 to 3 weeks prior to the hearing. In order to do much of his work, he crawled and laid on the ground. Range of motion was severely limited. His last VA examination was in 2012 and he had not had bedrest officially prescribed for his low back disability. Bending over, getting out of a chair, something rubbing on his back, or driving a car in excess of 15 to 20 minutes, triggered flare-ups. The medical evidence of record prior to September 30, 2016, has shown that throughout this period, the Veteran has had constant pain in the thoracolumbar spine. He was seen by his physicians and underwent VA examinations. His examinations showed he continued to complain of back pain, with range of motion in forward flexion greater than 30 degrees, but not greater than 60 degrees, warranting no more than a 20 percent rating throughout this period. Since September 30, 2016, the Veteran has undergone two VA examinations. Both examinations showed forward flexion of 10 degrees. There was no ankylosis shown. These findings are reflective of a 40 percent rating. Unfavorable ankylosis of the entire thoracolumbar spine, necessary to warrant a 50 percent rating has not been shown at any time. Consideration has also been given as to whether the evidence supports the assignment of a separate compensable rating for neurological impairment. Here, the Veteran has been separately rated for left and right lower extremity neuropathy, and urinary incontinence. An evaluation under DC 5243 for intervertebral disc syndrome is also to be considered as intervertebral disc syndrome has been shown. However, in order to warrant a rating in excess of 20 percent, the 40 percent rating for intervertebral disc syndrome requires incapacitating episodes of at least 4 weeks but less than 6 weeks during the past 12 months. In order to warrant a 60 percent rating, incapacitating episodes of at least 6 weeks are needed during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. Note (1): For the purposes of evaluations under Diagnostic Code 5243, an "incapacitating episode" is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. In this case, the Veteran has testified that he was unable to get out of bed 2 to3 times a week, but he had never been prescribed bedrest, which is necessary for incapacitating episodes. Even considering these alleged incapacitating episodes, he did not indicate that they required bed rest prescribed by a physician and treatment by a physician, for at least 4 weeks and less than 6 weeks, necessary to warrant a 40 percent rating as required by the diagnostic code. Therefore, a 40 percent rating for intervertebral disc syndrome was simply not warranted at any time period during the claim. The Board has considered the Veteran's statements that his lumbar spine disability was worse than reflected by the current ratings. Consideration has also been given to the testimony provided by him and his spouse at the videoconference Board hearing. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. He is not, however, competent to identify a specific level of disability of his lumbar disability according to the appropriate diagnostic codes. This required medical training and expertise, which the Veteran is not shown to possess. Such competent evidence concerning the nature and extent of the Veteran's low back disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which this disability is evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective evidence of complaints of increased symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest in the outcome of a proceeding may affect the credibility of testimony). Therefore, an initial increased rating greater than 20 percent prior to September 30, 2016, and greater than 40 percent since September 30, 2016, for low back disability is not warranted on a schedular basis. EED Claim-Service Connection for RLE radiculopathy The Veteran is seeking an effective date prior to October 6, 2011 for the grant of a separate rating for RLE radiculopathy as secondary to the service-connected lumbar spine disability. He maintains that the award of service connection for this disability should date back to 2005 or 2006. (Board hearing transcript at pg. 36). Generally, the effective date of a rating and award of compensation or an increased rating claim is the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a) (West 2014); 38 C.F.R. § 3.400(o)(1) (2016). A claim is a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p) (2016). An informal claim is any communication or action indicating intent to apply for one or more benefits. 38 C.F.R. § 3.155(a) (2016). VA must look to all communications from a claimant that may be interpreted as applications or claims, formal and informal, for benefits, and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196 (1992). By an October 2014 rating decision, the RO granted service connection for RLE radiculopathy as secondary to the service-connected lumbar spine disability, evaluated as 20 percent disabling, effective October 6, 2011. The RO based its effective date for the award of service connection for RLE radiculopathy on an October 6, 2011 electromyography (EMG) report of the lower extremities that showed radiculopathy at L5-S1 on the right. (See October 2014 rating action, referencing EMG report, prepared by J. O., M. D., dated October 6, 2011.) The Board finds that the preponderance of the evidence of record is in favor of an effective date earlier than October 6, 2011, for the award of service connection for RLE radiculopathy. VA received the claim for service connection for RLE radiculopathy (originally claimed as right leg and right foot disabilities as secondary to the service-connected low back disability) on September 12, 2008. (See NOD, received into the electronic record on September 12, 2008). There was no evidence of any radiculopathy during a May 2008 VA spine examination. (See May 2008 VA spine examination report). In addition, while May 14, 2009 and September 23, 2011 VA and private treatment reports contain diagnoses of questionable history of sciatica, RLE and lumbar radiculopathy, there was no confirmed clinical evidence of RLE radiculopathy at these examinations. However, the Veteran was seen September 15, 2008, presenting with feelings of stiffness in the low back, having more difficulty with RLE sciatica, complaining of pain down his right buttock, down the back of his leg, and knee all the way to the great toe. He found this pain to occur daily. In this case, the first medical evidence of RLE radiculopathy wherein it was seen that he was having problems with RLE sciatica, is September 15, 2008 in the VA medical rheumatology clinic. Therefore, entitlement to an effective date of September 15, 2008 for the award of service connection for RLE radiculopathy is granted. 38 C.F.R. § 3.400(o) (2016). ORDER An initial rating in excess of 20 percent for service-connected low back disability prior to September 30, 2016 is denied. An initial rating in excess of 40 percent for service-connected low back disability from September 30, 2016 is denied. An effective date of September 15, 2008 for the award of service connection for RLE radiculopathy as secondary to the service-connected low back disability is granted, subject to controlling regulations applicable to the payment of monetary benefits. REMAND Further development is necessary in this case. The Veteran claims that his adjustment disorder with depression and anxiety is more severe than currently evaluated. The Veteran underwent a VA contract examination in June 2015 to ascertain the nature and etiology of his adjustment disorder with depression and anxiety. Since that time, the Veteran has indicated that his anxiety attacks are 2 to 3 times a day, on a daily basis he has difficulty staying motivated, and he claims he has extreme mood swings. He stated that his anxiety is severe enough to be further evaluated. VA has a duty to assist veterans to obtain evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2016). This duty to assist includes providing a thorough and contemporaneous medical examination. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). In this regard, VA must provide a new examination when a veteran claims that a disability is worse than when originally rated or when the available evidence is too old to adequately evaluate the current state of the condition, such as the argument in the present case. See Olson v. Principi, 3 Vet. App. 480, 482 (1992) (citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992)). Here, the Veteran's complaints of worsening symptoms should afford him a new VA examination in order to ascertain the current level of severity of his service-connected adjustment disorder with depression and anxiety. The issue of entitlement to an effective date earlier than March 23, 2012, for the award of service connection for adjustment disorder with depression and anxiety should be held in abeyance until this issue is further addressed. In May 2016, new and material evidence to reopen the claim for a neck disorder was denied. Notice was provided that same month, and a NOD was filed several days later. In August 2016, the Veteran filed a NOD to the 10 percent initial rating assigned for LLE radiculopathy, and for an effective date earlier than January 24, 2012, for the same. No SOC has been furnished to the Veteran for these issues. As such, these claims must now be remanded to allow the AOJ to provide the Veteran with an appropriate SOC on each issue. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); see also Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995); Archbold v. Brown, 9 Vet. App. 124, 130 (1996). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any new medical evidence, from VA or otherwise, that may have come into existence regarding the Veteran's adjustment disorder with depression and anxiety since June 2015 and associate those records, if any, with the claims file. 2. Following completion of the above, schedule the Veteran for an appropriate examination to determine the current severity of his adjustment disorder with depression and anxiety. All indicated tests and studies should be performed, and the examiner should review the claims file prior to completing the report. The examiner should provide a complete rationale for the opinions/conclusions reached, whether favorable or unfavorable, citing the objective findings leading to the conclusions. 3. Thereafter, and following any additional development deemed warranted, readjudicate the issue of entitlement to an increased initial rating for adjustment disorder with depression and anxiety. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided a supplemental statement of the case (SSOC) and given the opportunity to respond. The case should then be returned to the Board for appellate consideration. 4. Additionally, the AOJ and his representative must be furnished a SOC that addresses all pertinent evidence, laws and regulations relevant to the issues of whether new and material evidence has been submitted to reopen the claim for service connection for a neck disorder, an increased initial rating in excess of 10 percent for LLE radiculopathy, and an effective date earlier than January 24, 2012, for service connection for LLE radiculopathy, in compliance with the holding in Manlincon v. West, as discussed above, and in accordance with 38 C.F.R. § 19.29, unless the matters are resolved by fully granting the benefits sought, or the withdrawal of the Veteran's NODs. If the Veteran perfects an appeal by timely submitting a substantive appeal (VA Form 9), the issue(s) should be returned to the Board for further appellate 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). 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). The issue of entitlement to an effective date earlier than March 23, 2012, for the award of service connection for adjustment disorder with (CONTINUED ON NEXT PAGE) depression and anxiety should be held in abeyance until the increased rating for this issue is further addressed. ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs