Citation Nr: 1753984 Decision Date: 11/27/17 Archive Date: 12/07/17 DOCKET NO. 16-55 058 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial evaluation in excess of 50 percent for service-connected unspecified depressive disorder (depression). 2. Entitlement to service connection for a neurologic impairment of the right lower extremity, claimed as right foot drop. 3. Entitlement to service connection for loss of use of the right side, to include hand tremors. 4. 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 D. Bassett, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1996 to May 1997, August 1998 to September 1998, September 1999 to December 2000, March 2002 to July 2003, and January 2005 to December 2007. This case is before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The somewhat confusing path of the Veteran's claims bears explanation. The Veteran initially filed a claim for "right knee," complex regional pain syndrome (CRPS) as secondary to right knee surgery, right foot drop as secondary to right knee replacement, loss of use of the right side due to tremors and possibly CRPS, and memory/cognitive issues possibly due to CRPS. The RO denied the first four issues, interpreting the claim for "right knee" as a claim for an increased rating for status post right knee replacement, and entitlement to TDIU and nonservice-connected pension in the March 2016 rating decision. In that decision, the RO also recharacterized the Veteran's claim for memory/cognitive issues as unspecified depressive disorder and granted the claim. The Veteran filed a notice of disagreement (NOD) in August 2016 with the denial of service connection for right foot drop, CRPS, TDIU, and right hand tremors, and the evaluation of his depressive disorder. He did not disagree with the denial of an increased rating for the service-connected status post right knee replacement. Given the Veteran's decision to disagree with only some of the issues in the March 2016 rating decision, it appears that he made a considered decision as to which decisions to continue to contest. However, he did file a separate claim for an increased rating for right knee in November 2016. While previously such a statement could be interpreted as a notice of disagreement with the March 2016 denial of an increased rating for his service connected right knee, the regulations now require NODs to be filed on a standardized form. See 38 C.F.R. § 20.201; 79 Fed. Reg. 57660 (explaining that the revised regulation requiring a NOD be on a standardized form is effective March 24, 2015). The Board may implicitly or explicitly waive the issue of the timeliness of a substantive appeal. A timely filed NOD, however, is a jurisdictional bar to appellate consideration, and this issue may not be waived. See Percy v. Shinseki, 23 Vet. App. 37, 41 (2009). The Board is bound by the law and is without authority to grant an appeal on an equitable basis. 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The RO issued a statement of the case (SOC) in September 2016 denying the Veteran's claims for entitlement to service connection for right foot drop, CRPS, TDIU, and right hand tremors, and an increased evaluation of his depressive disorder and the Veteran filed a substantive appeal. In a December 2016 rating decision, the RO granted service connection for CRPS. Despite this grant of service connection, the RO did not assign a separate rating for CRPS and merely considered whether a higher rating under the diagnostic criteria applying to knee injuries was warranted. Further, the RO stated that this grant of service connection for CRPS was considered a full grant of benefits sought on appeal. But then the RO issued a March 2017 supplemental statement of the case (SSOC) addressing whether an increased rating was warranted for the Veteran's service-connected status post right total knee replacement with CRPS, even though no NOD had ever been filed with this issue. The RO explained that the March 2017 SSOC was issued because the issue of whether an increased rating was warranted for the Veteran's service-connected status post right total knee replacement with CRPS is inextricably intertwined with the TDIU issue on appeal. The Veteran's representative submitted argument addressing the denial of service connection for right foot drop, TDIU, and right hand tremors, and the evaluation of his depressive disorder and status post right total knee replacement with CRPS. With the exception of the claim for an increased rating for depressive disorder, this confusing procedural history raises serious questions as to whether the Veteran's due process rights have been protected. He did not initially file an NOD with the March 2016 decision to deny an increased rating for his status post right total knee replacement or the December 2016 rating decision granting service connection for CRPS and assigning a 30 percent rating. This may have been because the Veteran assumed that the granting of his claim for CRPS would result in a separate compensable rating. Or this may have been because he reasonably thought the issue of an increased rating for his status post right total knee replacement was on appeal due to the March 2017 SSOC addressing an increased rating for right total knee replacement. The Veteran has not filed an NOD with either rating decision denying entitlement to an increased rating for status post right knee total replacement with CRPS, so the Board does not have jurisdiction over the claim. See Percy v. Shinseki, 23 Vet. App. 37, 41 (2009); 38 C.F.R. § 19.9(b) (2016). However, given that the Veteran may have been led to believe this issue was on appeal, the Board will refer the issue to the RO so that the Veteran can be provided adequate notice and time to appeal. The Veteran expressly filed a claim of service connection for right foot drop as due to his service-connected right knee replacement. However, in light of Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board finds that it is appropriate to expand the Veteran's claim to more broadly include neurologic impairments in the Veteran's right lower extremity that can be attributed to his right knee replacement. As such, the claim has been characterized broadly as neurologic impairment of the right lower extremity, claimed as right foot drop, as noted on the title page. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issue of entitlement to a rating in excess of 30 percent for service-connected status post right knee total replacement with CRPS, entitlement to service connection for neurologic impairment of the right lower extremity, claimed as right foot drop, and for loss of use of the right side, to include hand tremors, and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDING OF FACT For the entire period on appeal, the Veteran's service-connected unspecified depressive disorder (depression) disability has been manifested by an overall disability picture that more nearly approximates occupational and social impairment with reduced reliability and productivity; reduced reliability in most areas and total social and occupational impairment have not been shown. CONCLUSION OF LAW The criteria for an initial rating in excess of 50 percent for the Veteran's service-connected unspecified depressive disorder (depression) have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9434 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). The Veteran's claim for an increased rating for depression arises from a disagreement with the initial disability rating that was assigned following the grant of service connection. Courts have held that 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). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant facts have been properly developed, and that all available evidence necessary for equitable resolution of the issue has been obtained. The Veteran's service and post-service treatment records, VA examination reports, and lay statements have been obtained. VA has associated with the claims folder records of the Veteran's VA outpatient treatment records, and he was afforded two VA examinations, in March 2016 and February 2017, which are adequate because the examiners discussed his medical history, described his disabilities and associated symptoms in detail, and supported all conclusions with analyses based on objective testing and observations. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran has not reported that his depression has worsened since the date of the latter examination. A remand is thus not required solely due to the passage of time. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). The Board notes that the remaining claims are being remanded as records appear to be missing from the Veteran's claims file. As that evidence relates to the Veteran's physical impairments, as opposed to his mental disability, there is no reason to delay adjudication of the Veteran's claim for an increased rating for depression. II. Increased Rating The Veteran seeks a rating in excess of 50 percent for the service-connected depression. A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 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 their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Depression is rated under 38 C.F.R. § 4.130, Diagnostic Code 9434. The rating criteria provide that a 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9434. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. The use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Analysis The Board finds that, for the entire period on appeal, the Veteran's psychiatric symptoms were commensurate with occupational and social impairment with reduced reliability and productivity, as contemplated by a 50 percent disability rating. See 38 C.F.R. §§ 4.7, 4.130. In this regard, the Veteran demonstrated symptoms that included depression, anxiety, feelings of uselessness, difficulty with crowds, insomnia, low frustration tolerance, panic attacks, mild memory loss, flattened affect, and neglect of personal appearance. However, the Veteran has also consistently denied any suicidal and homicidal ideations, was cooperative, was oriented, exhibited good humor, had good insight and judgment, showed no evidence of hallucinations or thought disorder, and did not endorse symptoms of psychosis. He remains married and lives with his daughter. The Board does not find occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, to warrant a 70 percent rating. The Veteran worked through January 2015 and reported to the February 2017 VA examiner that he obtained a new job in law enforcement the previous week. A November 2015 letter from the Office of Personnel Management noted that the Veteran had been found disabled, but did not list his depression or any other psychiatric disability as contributing to his inability to perform his past job. He is married and is raising an adolescent child. The evidence does not show the Veteran has suicidal or homicidal ideations; obsessional rituals which interfered with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; and/or the inability to establish and maintain effective relationships. Additionally, the Veteran has consistently denied delusions or hallucinations. The treatment notes indicate that the Veteran's depression has not manifested in symptoms consistent with occupational and social impairment with deficiencies in most areas. Instead, the Veteran's depression has often been characterized as moderate or mild, for instance at a social work encounter in January 2017. The Veteran's thought processes, grooming, affect, and concentration were all within normal limits at treatment. He has consistently denied suicidal ideations, homicidal ideations, hallucinations, or delusions, for instance at treatment in December 2016, January 2017, February 2017, and May2017. Further, the two VA examiners judged that the Veteran's symptoms resulted only in an occasional decrease in work efficiency and intermittent periods of inability to perform any occupational tasks, consistent with a 30 percent rating. Neither viewed the Veteran's symptoms as consistent with the rating criteria for a 50 percent rating, let alone a 70 percent evaluation, in their professional evaluations. Symptoms reported by the VA examiners did not include suicidal ideation, obsessional rituals, illogical speech, continuous panic or depression, impaired impulse control, or inability to establish and maintain effective relationships. While the March 2016 VA examiner did report that the Veteran experiences neglect of personal appearance and hygiene, the treatment notes are inconsistent with this finding. For instance, in January 2017, at the February 2017 VA examination, and in May 2017, the Veteran was appropriately groomed. The Board notes that the Veteran has reported feeling irritable and having a lower frustration tolerance. However, the record does not reflect that the Veteran is prone to violence or outbursts due to his irritability. Therefore, there is no indication that the Veteran's irritability has risen to the severity, frequency, or duration consistent with impaired impulse control or unprovoked periods of violence. Thus, the Board finds that for the period on appeal, the Veteran does not have occupational and social impairment, with deficiencies in most areas. He does have some deficiencies in several areas, but the greater weight of evidence demonstrates that it is to a degree that is contemplated by the 50 percent rating assigned herein. Even resolving any reasonable doubt in the Veteran's favor, the Board finds that he does not meet the requirements for an evaluation greater than the 50 percent schedular rating now assigned. To the extent that the Veteran has any of the criteria for a 70 percent rating or higher, see Mauerhan, 16 Vet. App. at 442, the Board concludes that his overall level of disability does not exceed the criteria for a 50 percent rating. In summary, the Board believes that the 50 percent disability assigned for the entire period on appeal contemplates the frequency, severity, and duration of his depression symptoms, while resolving all doubt in favor of the Veteran. The rating now assigned is based on all the evidence of record, rather than any isolated medical finding or assessment of level of disability. 38 C.F.R. § 4.126(a). Accordingly, his myriad of symptoms do not more nearly reflect the frequency, severity, and duration of symptoms ratable at the 70 percent disability evaluation, as discussed above. ORDER Entitlement to a rating in excess of 50 percent for unspecified depressive disorder is denied. REMAND As highlighted above, the Veteran's claims have taken a confusing path to the Board. As a result, there is insufficient medical and procedural clarity to resolve many of the Veteran's claims. To ensure due process, a remand for further procedural development is necessary. First, the Board notes that there appears to be evidence missing from the Veteran's claims file. Both the March 2016 and December 2016 VA examinations reference a November 2015 neurological examination. However, it does not appear that such an examination has been associated with the Veteran's file. This evidence is relevant to the Veteran's claims for service connection for neurologic impairment and must be obtained. The Veteran seeks service connection for a neurologic impairment of the right lower extremity, claimed as right foot drop. In his October 2015 claim, the Veteran asserted that he experiences right foot drop as secondary to his right knee replacement. Service connection can be granted for a disability when the evidence shows that the disability was caused by or aggravated by a service-connected disability. The March 2016 VA examiner opined that the Veteran does not have a chronic condition or diagnosis of right foot drop. The VA examiner explained that a neurological examination from November 2015 was normal and reaffirmed that examination's findings of a normal neurological examination. The VA examiner admitted that the Veteran had evidence of changes to the nerves in a 2014 EMG (electromyogram). Yet the VA examiner reinforced that the Veteran does not experiences right foot drop, and therefore the condition is less likely than not related to the Veteran's service or aggravated beyond its natural progression by an in-service event or injury. Likewise, the results of another VA examination in December 2016 indicated that the Veteran's reports of absent sensation in the right lower extremity were the result of suboptimal effort and were not further validated by the objective medical records. There is no evidence the Veteran has medical expertise and he is not required to know the exact diagnosis of his disability when he claims entitlement to service connection. When a Veteran makes a claim, he or she is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As noted above, the Veteran sought service connection for foot drop, a neurologic impairment of the right lower extremity, as due to his service-connected right total knee replacement. The March 2016 and December 2016 VA examiners opined that the Veteran does not have right foot drop, which is an inadequately narrow interpretation of the Veteran's claim that does not address whether any neurologic impairments of the right lower extremity are due to his right total knee replacement. As noted by the March 2016 VA examiner, there is a November 2014 EMG study that reveals certain abnormal findings. The results were consistent with moderate right peroneal and tibial neuropathy, lesion at the knee. Further, there is an April 2015 evaluation by Dr. R.S.A., D.O., of the Veteran's medical issues. Dr. R.S.A. noted the EMG findings and indicated that the Veteran's neuropathy stems from the lesion at the knee. Thus, there objective evidence of a neurologic impairment of the right lower extremity and evidence that lesions in his right knee are causing the neurologic impairment. While the Board recognizes that the opinion of Dr. R.S.A. may be implicitly connecting the Veteran's right knee lesion is due to his status post right total knee replacement, the Board may not render a medical opinion finding such a connection under the law, and must rely on competent medical evidence. Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991) (Board may not make independent medical assessments). As such, remand is necessary to obtain an adequate medical opinion. Inextricably intertwined with the question of entitlement to service connection for a neurologic impairment of the right lower extremity is entitlement to service connection for loss of use of the right side, to include hand tremors, and entitlement to TDIU. The development requested in connection with the foregoing claim could have bearing on whether a grant of service connection or an award of TDIU is proper. Hence, these issues are not yet ripe for appellate review and must be deferred pending readjudication of the other remanded claim. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two or more issues are inextricably intertwined if the disposition of one claim could have a significant impact on the outcome of another). Further, the Veteran reported to the February 2017 VA examiner that he had just obtained a new job. As such, updated employment information is necessary to address the Veteran's TDIU claim. Finally, as addressed in the Introduction, the RO granted service connection in December 2016 for CRPS. Yet in that rating decision and the March 2017 SSOC, the RO provided little explanation for why they had made the decision or what the decision covered. Neither did the rating decision address why the grant of service connection did not result in an independent rating for CRPS. The rating decision explains that CRPS was diagnosed as sequelae of the Veteran's knee surgeries in May 2016, but then indicated that the Veteran experiences no current residuals of CRPS. The existence of a current disability is the cornerstone of a claim for VA disability compensation, and without a current disability, service connection is not warranted. 38 U.S.C.A. § 1110. Further, the report from Dr. R.S.A. indicates continuing pain due to CRPS in the Veteran's right knee and the treatment notes indicate the Veteran takes numerous medications to address his right knee pain. The March 2017 VA examiner indicated only intermediate degrees of residual weakness, pain, or limitation of motion, but also indicated pain, weakness, fatigability, or incoordination significantly limit the functional ability of the Veteran's right knee with repeated use over time. As noted in the Introduction, the Veteran has not perfected an appeal of the issue of entitlement to an increased rating for status post right total knee replacement, but even if the issue were before the Board, the RO's actions are inadequate to resolve this issue. Since the claims file is being returned it should be updated to include any recent VA treatment records that are not of record. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Attempt to obtain records of the November 23, 2015 neurological examination and associated these records with the Veteran's file. If VA attempts to obtain these records and they are unavailable, document the RO's efforts to obtain these records in the file and notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 2. Contact the Veteran, and, with his assistance, identify any other outstanding records of pertinent medical treatment from VA or private health care providers, to obtain the treatment records identified by the Veteran. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). Also, send the Veteran a letter requesting he provide updated information on any recent employment and enclose the form for him to request information from his current or past employers. 3. After the above development has been completed and all records associated with the claims file, the Veteran must be afforded a VA examination by an examiner with appropriate expertise to determine the nature and etiology of the Veteran's claimed neurologic impairment of the right lower extremity. Any and all studies, tests, and evaluations that are deemed necessary by the examiner should be performed. The claims folder, including a copy of this remand, should be reviewed by the examiner. The examination report should note review of these records and specifically the November 2014 EMG study indicating abnormal results and the April 2015 evaluation by Dr. R.S.A. The examiner should then: (a) Provide a specific diagnosis for any neurologic disability of the right lower extremity. (b) Provide an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that any diagnosed neurologic disability of the right lower extremity originated during, or is etiologically related to, active duty service. (c) Provide an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that any currently neurologic disability of the right lower extremity was caused or aggravated by the Veteran's service-connected disabilities. The examiner should specifically address the November 2014 EMG indicating abnormal study and Dr. R.S.A.'s April 2015 evaluation linking the Veteran's neuropathy to a lesion of the right knee. By aggravation, the Board means a permanent increase in the severity of the disability that is beyond natural progression. If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the Veteran's disability found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disability. The complete rationale for any opinion offered should be provided. If the examiner finds that he or she cannot provide an opinion without resorting to speculation, the examiner must explain why he or she is unable to provide an opinion without speculation, and sufficiently explain the reasons for that inability. 4. After the above development has been completed and all records associated with the claims file, the Veteran must be afforded a VA examination by an examiner with appropriate expertise to determine the nature and etiology of the Veteran's claimed neurologic impairment of the right upper extremity, claimed as loss of use of the right side and hand tremors. Any and all studies, tests, and evaluations that are deemed necessary by the examiner should be performed. The claims folder, including a copy of this remand, should be reviewed by the examiner. The examiner should then: (a) Provide a specific diagnosis for any neurologic disability of the right upper extremity, to include any loss of use of the right side and hand tremors. (b) Provide an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that any diagnosed neurologic disability of the right upper extremity originated during, or is etiologically related to, active duty service. (c) Provide an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that any currently neurologic disability of the right upper extremity was caused or aggravated by the Veteran's service-connected disabilities. The examiner should specifically address the Veteran's contention that his right upper extremity neurologic impairment is due to his CRPS. By aggravation, the Board means a permanent increase in the severity of the disability that is beyond natural progression. If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the Veteran's disability found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disability. The complete rationale for any opinion offered should be provided. If the examiner finds that he or she cannot provide an opinion without resorting to speculation, the examiner must explain why he or she is unable to provide an opinion without speculation, and sufficiently explain the reasons for that inability. 5. After the above development has been completed and all records associated with the claims file, perform any additional warranted development, including any examinations necessary in light of new evidence. While not on appeal, the Board notes that it appears that there is inadequate medical evidence to rate the severity of the Veteran's CRPS. Then provide the Veteran with a rating decision adjudicating his claim for entitlement to an increased rating for status post right total knee replacement with CRPS. The decision should explain what signs and symptoms the service connection of CRPS covers and why a separate rating was not assigned. Provide the Veteran a copy of the form for filing a notice of disagreement (See 38 C.F.R. § 20.201) with the resulting rating decision and provide him notice of how long he has to file his disagreement with the RO's decision. 6. After the above development has been completed, readjudicate the Veteran's claims. If the benefits sought remain denied, provide the Veteran and the Veteran's representative with a supplemental statement of the case, and return the case to the Board. (CONTINUED ON NEXT PAGE) The Veteran 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). ______________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs