Citation Nr: 1717172	
Decision Date: 05/18/17    Archive Date: 06/05/17

DOCKET NO.  08-22 888A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to an increased rating in excess of 10 percent for service-connected left hip disability.

2.  Entitlement to an increased rating in excess of 20 percent for service-connected residuals of low back injury with spondylosis and degenerative disc disease, L4-5 and L5-S1, with nerve impingement.

3.  Entitlement to a compensable initial evaluation, for the period prior to November 24, 2015, and an evaluation in excess of 20 percent thereafter, for left lower extremity radiculopathy.

4.  Entitlement to a total rating based on individual employability due to service-connected disabilities (TDIU) prior to April 2, 2009.

5.  Entitlement to service connection for neck disorder, to include as secondary to a service-connected left knee condition.

REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Marcus J. Colicelli, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1983 to July 1986. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2008 and October 2008 rating decisions the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

Upon his request, the Veteran was scheduled for a Travel Board hearing in July 2015.  As he failed to report for this hearing without explanation and did not request that a new hearing be scheduled, the Board finds the hearing request to be withdrawn.

In an October 2015 decision, the Board remanded the increased rating and TDIU issues and denied service connection for the Veteran's neck disorder.  The Veteran appealed the Board's October 2015 decision to the United States Court of Appeals for Veterans Claims (CAVC).  In November 2016, the Court issued a Memorandum Decision that vacated in part the Board's October 2015 denial of service connection and remanded the claim to the Board for further proceedings.  

As noted above, these matters were previously before the Board where they were remanded for further development.  As discussed in further detail below, the Board finds that there has been substantial, but not strict compliance with the most recent remand directives.  Any inadvertent non-compliance with the August 2016 Remand amounts to no more than harmless error, thus the prior development comports with the tenets of Stegall v. West, 11 Vet. App. 268, 271 (1998).  That development having been completed, the claim is now ready for appellate review.

In a January 2016 rating decision, the RO granted service connection and assigned a separate, initial rating for radiculopathy of the left lower extremity effective November 24, 2015.  The RO explained that the radiculopathy was due to his service-connected back disability.  Although the Veteran did not file any document with VA expressing disagreement with the January 2016 decision, radiculopathy is a manifestation of the Veteran's service-connected back disability and he did not limit his original appeal to one manifestation but rather was seeking the highest rating or ratings available for disability due to his service-connected back disability.  See AB v Brown, 6 Vet App 35 1993.  Moreover, regulation provides that VA is to evaluate any neurologic abnormalities associated with a spine disability under an appropriate diagnostic code.  38 C FR § 4 71a, Note (1) ( 2016).  The Board is therefore required to consider whether ratings are warranted for neurologic abnormalities associated with the back condition.  

In an April 2009 rating decision, the RO granted entitlement to a TDIU effective April 2, 2009.  The RO associated the Veteran's inability to work with his service-connected spine, hip, and knee disabilities.  The Veteran did not file any document with VA expressive disagreement with the April 2009 decision.  However, the TDIU is part and parcel with the claims for a higher evaluation for the Veteran's disabilities which were filed prior to April 2, 2009.  Therefore, entitlement to a TDIU for the period prior to April 2, 2009, is currently on appeal before the Board.   

The Board notes that the claims file contained documents pertaining to an individual other than the Veteran who is the subject of the appeal.  The misfiled documents have been removed from the claims file for association with the correct claims file.

Entitlement to TDIU and entitlement to service connection for a neck disorder are REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.
FINDINGS OF FACT

1.  The Veteran's lumbar spine disability is manifested by symptoms of pain and flare-ups that result in functional impairment more nearly approximating limited flexion of the thoracolumbar spine to 30 degrees or less.

2.  For the entire appeal period, the Veteran's lumbar spine disability resulted in moderate left lower extremity radiculopathy.

3.  For the entire appeal period, the Veteran's left hip disability has been shown to be productive of flexion of the thigh limited to 45 degrees. 

4.  For the entire appeal period, the Veteran's left hip disability has been shown to be productive of extension of the thigh limited to 5 degrees.

5.  For the entire appeal period, the Veteran's left hip disability has been shown to be productive of limitation of abduction with an inability to cross legs, and impaired and painful rotation.


CONCLUSIONS OF LAW

1.  Throughout the entire period on appeal, the criteria for a disability rating of 40 percent for low back disability have been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.14, 4.59, 4.71a, Diagnostic Code (DC) 5243 (2016).

2.  Throughout the entire period on appeal, the criteria for a separate rating of 20 percent disabling for left lower extremity radiculopathy has been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 3.957, 4.1, 4.2, 4.7, 4.40, 4.45, 4.123, 4.124a; DC 8520 (2016).

3.  Throughout the entire period on appeal, the criteria are met for a separate rating of 10 percent for left hip disability based on limitation of extension.  38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5251 (2016).

4.  Throughout the entire period on appeal, the criteria are met for a separate rating of 10 percent for left hip disability based on limitation of flexion.  38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5252 (2016).

5.  Throughout the entire period on appeal, the criteria are met for a separate rating of 10 percent for left hip disability based on limitation of abduction.  38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5253 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

The VA has a duty to provide specific notification to the Veteran and assist him with the development of evidence pursuant to the Veterans Claims Assistance Act (VCAA).  In a claim for an increased evaluation, the VCAA requires generic notice, that is, namely, information sent to the Veteran indicating that he or she must submit evidence demonstrating a worsening or increase in severity of the disability, the effect that worsening has on employment, and general notice regarding how disability ratings and effective dates are assigned.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).

Here, the duty to notify was satisfied by way of a letters sent to the Veteran in dated in October 2007 and April 2008.

As to VA's duty to assist, pertinent records from all relevant sources identified by the Veteran, and for which he authorized VA to request, have been obtained.  38 U.S.C.A. § 5103A.  VA has associated service treatment records, and post-service VA and private medical records with the claims folder.  

Furthermore, the Board finds that there has been substantial compliance with the October 2015 and July 2016 Remand instructions.  Regarding the most recent Remand decision, the Veteran was afforded new VA examinations for the purpose of complying with recent Court jurisprudence of Correia v. McDonald, 28 Vet. App. 158 (2016).  In August 2016, the RO issued a supplemental statement of the case (SSOC) which readjudicated the claims on appeal with regard to the materials received post-remand.  A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders.  Stegall, 11 Vet. App. at 271.  In this case, the RO substantially complied with the Board's July 2016 remand instructions by affording the Veteran new VA examinations which identified ROM on active motion, pain on weight bearing, and the ROM of the nonweight-bearing hip.  See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010) ("It is substantial compliance, not absolute compliance, that is required" under Stegall) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)).

As noted in the introduction, the Board finds that the most recent VA examinations for the Veteran's low back and hip arguably are not within the parameters espoused by Correia.  Specifically, the Board acknowledges that ROM on passive motion was not recorded in the 2016 examinations.  However, the Board finds that active range of motion on weight bearing, which was reported, is intrinsically worse or more limited/difficult than any passive or non-weight bearing testing and, thus, any failure to report those findings is harmless, and thus substantial but not strict compliance can be found.  An examiner's failure to strictly comply with remand instructions does not necessarily render the examination noncompliant.  See Dyment, 13 Vet.App. at 146-47 (holding there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination "more than substantially complied with the Board's remand order").  Moreover, the Board notes the concept of judicial efficiency weighs against further development of this matter, having been previously remanded for VA examinations in the past two years yielding nearly identical findings.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (noting that "[a] veteran's interest may be better served by prompt resolution of his claims rather than by further remands to cure procedural errors that, at the end of the day, may be irrelevant to final resolution and may indeed merely delay resolution").

Furthermore, the Board observes that the Veteran has raised no argument in protest against these acknowledged issues, and prior examinations are adequate because they include all information needed to rate the disability and there is no allegation or evidence that the disability has worsened since the most recent VA examination.  Cf. Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (the passage of time alone, without an allegation of worsening, does not warrant a new examination). 

The VA's duty to assist in the development of the claim is complete, and no further notice or assistance to the Veteran is required to fulfill the duty.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, Smith v. Principi, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).

II.  Increased Ratings

The Veteran seeks an increased rating for his residuals of a low back injury with left lower extremity radiculopathy and for his left hip disability.  He asserts that his disabilities are more severe than what the current ratings represent.

Applicable Laws

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; 38 C.F.R. Part 4.  Separate DCs identify the various disabilities.  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other applicable general policy considerations are: interpreting reports of examination in light of the whole recorded history and reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Board has considered the entire record, including the Veteran's VA clinical records.  These show complaints and treatment, but will not be referenced in detail.  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 (Fed. Cir. 2000).  Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disabilities.

Low Back

In an October 2008 rating decision, the RO considered all pertinent medical evidence received for the year prior to the Veteran's March 2008 increased rating claim and continued a 20 percent rating for the Veteran's lumbar spine disability, effective February 22, 2006.  In January 2016, the RO awarded service connection for radiculopathy of the left lower extremity as associated with his low back injury, and assigned a 20 percent rating effective November 24, 2015.  The Veteran claims that his currently assigned disability rating does not reflect the increased severity of his disability.  See August 2008 VA Form 21-4138 ("Since I have requested an increase for my disabilities, I would appreciate if the VA had requested for new radiology reports that would have reflected my current conditions, rather than the reports from an earlier timeframe.")

Under the General Rating Formula for Diseases and Injuries of the Spine, a rating of 20 percent is warranted when there is 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 is 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.  38 C.F.R. § 4.71a, DC 5242, General Rating Formula for Diseases and Injuries of the Spine (2016). 

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

A rating of 50 percent is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a rating of 100 percent is warranted for unfavorable ankylosis of the entire spine.  Id. 

Under 38 C.F.R. § 4.59, painful motion is considered limited motion even though a range of motion is possible beyond the point when pain sets in.  Hicks v Brown, 8 Vet. App. 417, 421 (1995). 

When evaluating a musculoskeletal disability, VA must consider functional loss due to pain, weakness, excess fatigability, or incoordination.  38 C.F.R. §§ 4.40, 4.45 and DeLuca v. Brown, 8 Vet. App. 202 (1995).  These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain.  The examiner should also determine the point, if any, at which such factors cause functional impairment.  Mitchell v. Shinseki, 25 Vet. App. 32, 43-4 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59.

In addition to the General Rating Formula, the Formula for Rating IVDS Based on Incapacitating Episodes provides for a 20 percent rating requires evidence of incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; and a 40 percent rating requires evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.  38 C.F.R. § 4.71a, DC 5243.  

An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician.  38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes, Note (1).

Any neurologic abnormalities, including but not limited to bowel or bladder impairment, are to be evaluated separately under the appropriate diagnostic codes.  See Note (1).

Facts 

VAMC medical treatment records dated throughout the appeal period reflects ongoing and continuous medical care for chronic back pain with radiculopathy, treated with medication and steroidal injections.  In December 2006, the Veteran underwent a spinal epidural injection, lowering his complaint of back pain from 7/10 to 3/10.  See December 2006 PM&R Procedure Note ("PRE-OP DX: lumbar radiculopathy"); see also January 2007 Primary Care note ("low back pain...chronic problem...imaging studies in the past have shown degenerative changes...osteoarthritis of his knee and back. Will order naproxen and omeprazole."); November 2008 Physical Medicine note ("low back pain...cervical radiculopathy...light touch: normal except decreased at toes bil"); May 2011 Physical Therapy note ("Pt reported he fell from a ladder and hurt his back. He is now complaining of pain on the lower back and right hip"); April 2015 Preventative Health Screening note ("primary pain...low back...relief from pain by medication, heat/cold...pain always there...affects sleep physical activity walking concentration").  

The Veteran was afforded a VA examination for his lower back in September 2008.  The Veteran reported back pain which radiates to his buttock, interference with sleep, and treatment with epidural injections and a TENS unit with "minimal if any relief."  The Veteran denied flare-ups, incapacitating episodes during the last year, bowel or bladder incontinence, or the use of assistive devices.  Physical examination revealed tenderness, right sided limping gait, and no spasms.  The Veteran demonstrated 0 to 45 degrees of forward flexion, extension of 0 to 5 degrees, with pain throughout on both.  Right and left lateral flexion and right lateral rotation were 0 to 30 degrees with "pain only on right lateral rotation," and left lateral rotation was 0 to 20 degrees with pain throughout.  The examiner observed right buttock and lower back pain throughout all motions, with negative straight leg test to 90 degrees, full motor strength in the lower extremities, and fully intact sensation to all extremities.  Repetitive use demonstrated increased pain without additional ROM loss and no flare-ups, fatigue, weakness, or lack of endurance shown.  The examiner provided diagnoses of mild degenerative disc disease and S1 nerve root impingement which is "causing his buttock and back pain."

The Veteran was afforded a VA examination in November 2015 for his lower back.  Following a review of the record and in-person examination, the examiner identified diagnoses of spondylosis, degenerative disc disease with nerve impingement.  The Veteran reported "constant" lower back pain that "sometimes hurts real bad," which has radiated down his left buttock over the past four years.  The Veteran reported left leg weakness and stiffness and that he re-injured his back due to a fall four years prior.  The Veteran reported use of a TENS unit that helps "minimally," past epidural injections, and hydrocodone for the pain that is "worsening over time."  The examiner noted that the Veteran walked "awkwardly, favoring his left side, because of pain and sensation of weakness."  Regarding flare-ups, the Veteran reported that they feel like a "knot" in the left low back and buttocks with tenderness and are brought on by increased activity like lifting, occurring once or twice a month, lasting up to three days.  The Veteran described his left lower radicular pain as "shooting electric type pain."  Physical evaluation revealed abnormal ROM with pain exhibited on forward flexion to 60 degrees, extension, to 15 degrees, right lateral rotation and right and left lateral flexion to 20 degrees, and left lateral rotation to 25 degrees, and pain on weight bearing and repetitive testing.  The examiner found that the Veteran's reports of flare-ups were consistent with the examination, and noted tenderness that did not result in an abnormal gait or contour.  The examiner identified normal muscle strength, and "instability of station, disturbance of locomotion, and interference with standing."  Neurological testing revealed "moderate" radiculopathy of the left lower extremity consisting of severe constant pain and severe numbness, without paresthesias or intermittent pain.  The examiner identified intervertebral disc syndrome with episodes of acute bed rest according to the Veteran without corresponding documentation.  The examiner opined that the Veteran's low back pain would affect his employability, noting the Veteran last worked in 2005 and that his wife helps him with showering and cooking and cleaning. 

The Veteran was next afforded a VA examination in December 2015.  Following a review of the record and an interview with the Veteran, diagnoses of lumbosacral strain and degenerative arthritis were noted.  Medical history as noted in the prior examinations was identified, noting exacerbation due to falls and left lower radicular symptoms.  The Veteran reported flare-ups resulting in "increased pain and stiffness."  Physical evaluation revealed abnormal ROM with pain exhibited on forward flexion to 40 degrees, extension to 15 degrees, right and left lateral rotation and right and left lateral flexion to 20 degrees.  The examiner identified tenderness over the S1 joint and left upper buttock and muscle spasm with no guarding and no resulting abnormal gait or contour.  Neurological testing revealed "moderate" radiculopathy of the left lower extremity consisting of moderate paresthesias and numbness, without constant or intermittent pain.  The examiner identified intervertebral disc syndrome without episodes of acute bed rest.  

The Veteran was most recently afforded a VA examination in August 2016.  The Veteran reported increased low back pain with bending, lifting, standing and walking, and "no current left or right radicular or dermatomally distributed LE symptoms."  Physical evaluation revealed abnormal ROM with pain exhibited on forward flexion to 60 degrees, extension to 10 degrees, right and left lateral rotation and right and left lateral flexion to 20 degrees.  Pain on weight bearing was noted, as well as bilateral lumbar muscular tenderness and no additional ROM loss on repetitive use testing.  The examiner did not wish to speculate on degrees of additional ROM loss due to pain, weakness, fatigue or incoordination as the Veteran was not experiencing a flare-up or having witnessed repeated use over time.  The examiner noted additional factors of less movement with pain and adhesions and increased pain with bending and lifting.  No radicular symptoms were identified by the examiner, nor was ankylosis.  The examiner identified IVDS, but did not identify any acute episodes over the past year requiring bed rest.  The examiner concluded that the Veteran's lower back impacted his ability to function due to his inability to engage in repetitive bending and lifting, or prolonged standing or walking, thus requiring sedentary employment.  Regarding the Veteran's condition throughout the period on appeal beginning March 2008, the examiner opined that the Veteran's "well documented" symptoms are consistent throughout exams beginning in 2005, thus "it is at least as likely as not that the current level of disability was...present in Mar 2008."  

Analysis

The Board finds that throughout the appeal period, the Veteran's lumbar spine symptoms most closely approximate the criteria for a 40 percent rating under the General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Codes 5235 to 5243.  A review of the record, and as opined by August 2016 VA examiner, that the Veteran's lumbosacral spine symptoms have remained constant throughout the appeal period.  Indeed, range of motion testing performed during the September 2008 VA examination through to the August 2016 VA examination shows that, more often than not, the Veteran's forward flexion has been limited near the 30 degree threshold, demonstrating findings between 60 and 40 degrees during periods of time when his lower back was not experiencing a flare-up.  Moreover, the Veteran reported constant, severe back pain throughout the pendency of his claim, and each VA examiner has found that the reports are consistent with their findings and review of the record.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 204-207.  In particular, the Board finds persuasive the most recent opinion of the August 2016 VA examiner who opined that the Veteran's symptoms were consistent, if not gradually worsened, throughout the period on appeal, and seemingly subject to further functional limitation should the examiner have been able to observe the Veteran during a flare-up or upon extensive active motion.  Accordingly, the Board finds that the criteria for a 40 percent rating were met throughout the period on appeal.  

Finally, in order to warrant an evaluation in excess of 40 percent for the Veteran's lumbar spine the evidence must show unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.

Here, neither VA treatment notes nor the VA examination reports indicate that there was unfavorable ankylosis of the entire thoracolumbar spine or the entire spine for the appeal period.  Nor is there evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  Rather, these documents contain either specific findings of no ankylosis or findings reflecting that there was a diagnosis of IVDS without the required periods of physician prescribed bed rest.  Thus, the preponderance of the evidence is accordingly against a rating greater than 40 percent under DC 5243, and the benefit-of-the-doubt standard of proof does not apply.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.25 (2016). 

With respect to the provisions of 38 C.F.R. §§ 4.40 and 4.45, in Johnston v. Brown, 10 Vet. App. 80, 85 (1997), the United States Court of Appeals for Veterans Claims (Court) determined that, if a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. § 4.40 and 4.45 are applicable.  In the instant case, the Veteran is receiving the maximum rating allowable under the current General Rating Formula for Diseases and Injuries of the Spine, absent ankylosis.  Accordingly, 38 C.F.R. § 4.40 and § 4.45 are not for consideration for the appeal period.

Left Lower Extremity Radiculopathy

The Board has also considered whether a compensable initial rating, and a rating in excess of 20 percent beginning November 24, 2015, for the Veteran's radiculopathy of the left lower extremity is warranted.  Although the record fails to demonstrate associated objective neurologic abnormalities to such a severity as to warrant an increase during the appeal period, the record does reflect that the Veteran has demonstrated the requisite symptomatology prior to the current effective date, and thus, entitlement to a separate 20 percent rating for radiculopathy prior to November 24, 2015, is warranted.  

In this regard, impairment of the sciatic nerve is evaluated under Diagnostic Code 8520, which provides that a 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve; a 40 percent rating is assigned for moderately severe incomplete paralysis; and a 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy.  A maximum 80 percent rating is assigned for complete paralysis of the sciatic nerve; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost.  38 C.F.R. § 4.124a, DC 8520.

In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances.  38 C.F.R. § 4.120.  Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function.  With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves.  The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 

When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree.  In rating peripheral nerve disability, neuritis-characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating-is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis.  The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis.  38 C.F.R. § 4.123.

In the instant case, the Board finds that the Veteran has demonstrated left lower extremity radiculopathy throughout the entire period on appeal, and that his symptoms are manifested by no more than mild to moderate radicular sensory symptoms of the sciatic nerve.  As noted above, the record demonstrates that the Veteran was diagnosed with "lumbar radiculopathy" prior to the appeal period in 2006, and S1 nerve impingement during the September 2008 VA examination, with continuous complaints of left lower extremity discomfort.  However, the symptomatology reported by the Veteran does not demonstrate more than mild to moderate radicular symptoms.  As identified by the November 2015 and December 2015 VA examinations, neurological testing revealed "moderate" radicular symptoms.  Moreover, as noted above, the most recent VA examination in August 2016 did not find any radicular symptoms.  Therefore, the Board finds that, the Veteran's currently assigned 20 percent rating for left lower extremity radiculopathy is commensurate with the sensory symptoms manifested during the period on appeal.

These issues have also been reviewed with consideration of whether staged ratings would be warranted.  However, the evidence demonstrates a consistency of symptomatology that does not warrant the need to assign different ratings in order to adequately compensate the disability.  Hart v. Shinseki, 12 Vet. App. 119 (1999).

After reviewing the totality of the relevant evidence, the Board concludes that the preponderance of the competent probative evidence supports a determination that 40 percent and 20 percent evaluations are respectively warranted throughout the appeal period for the Veteran's low back and left lower extremity radiculopathy, but ratings in excess of these amounts are not warranted.  It follows that there is not a state of equipoise of the positive evidence with the negative evidence to permit a more favorable determination pursuant to 38 U.S.C.A. § 5107(b) for an increased rating.

Left Hip

In a January 2006 rating decision, the Veteran was awarded service connection for his left hip disability, evaluated as 10 percent disabling under DC 5019 for bursitis, effective November 9, 2005, to November 24, 2015.  Thereafter, in a January 2016 rating decision, the RO continued the 10 percent evaluation for the Veteran's left hip disability under DC 5003-5251 for limitation of extension due to avascular necrosis with degenerative arthritis and trochanteric pain syndrome, and granted a separate, non-compensable rating for flexion limitation, effective November 24, 2015.  

Applicable Laws

These disabilities are currently rated under hyphenated DC 5003-5251.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen.  38 C.F.R. § 4.27.

DC 5003 provides criteria for evaluating degenerative arthritis. 38 C.F.R. § 4.27.  Specifically, this diagnostic code allows compensation of arthritis established by x-ray findings to be rated either based on the limitation of motion of the affected joint or based on x-ray findings.  38 C.F.R. § 4.471a, DC 5003.  If noncompensable limitation of motion is shown, a 10 percent rating is warranted.  Ratings based on x-ray findings will not be combined with ratings based on limitation of motion.  38 C.F.R. § 4.71a, DC 5003, Note 1.

Diagnostic Code 5251 provides a sole 10 percent rating for extension of the thigh limited to 5 degrees. 

Under Diagnostic Code 5250, a 60 percent rating is warranted for favorable ankylosis of the hip, in flexion at an angle between 20 degrees and 40 degrees, and slight adduction or abduction; a 70 percent rating is provided for intermediate ankylosis of the hip; and a 90 percent rating is allowed for unfavorable, extremely unfavorable ankylosis, the foot not reaching ground, where crutches are necessitated. 

Under Diagnostic Code 5252, a Veteran is entitled to a 10, 20, 30, or 40 percent rating for flexion of the thigh limited to 45, 30, 20, or 10 degrees, respectively. 

Diagnostic Code 5253 provides for a 10 percent rating where there is impairment of the thigh, resulting in limitation of rotation of the affected leg, such that he cannot toe-out more than 15 degrees, or there is a limitation of abduction such that the Veteran cannot cross his legs.  A 20 percent rating is warranted under Diagnostic Code 5253 where impairment of the thigh causes limitation of abduction of, motion lost beyond 10 degrees. 38 C.F.R. § 4.71a.

The average normal range of motion of the hip is flexion from 0 to 125 degrees and abduction from 0 to 45 degrees.  38 C.F.R. § 4.71, Plate II (2014).

Facts

During a January 2006 VA examination, the Veteran reported "every day and constant" pain stemming from a 2005 fall, describing it as a "9/10...sharp stabbing."  The Veteran reported taking "7-8" hydrocodone a day for pain, with steroidal injections and the use of a cane.  The examiner did not note flare-ups, but that the Veteran reported interference with daily activities including, "sitting, walking, standing, bending and stooping."  Physical examination revealed a "severe limp" and tenderness.  ROM flexion to 75 degrees, abduction to 25 degrees, abduction to 15 degrees, all with "severe" pain, and external rotation to 40 degrees and internal to 30 degrees all with pain.  

In October 2007, the Veteran underwent a VA examination for his left hip.  The Veteran reported "pain over the lateral aspect of the greater trochanter" for which he received treatment at the VAMC of steroidal injections, and takes hydrocodone and naproxen for the pain, but only experiences "minimal relief."  Following a 2005 fall, the Veteran reported experiencing daily, "extremely acute" pain of a "10/10" level with difficulty weight bearing.  The examiner noted a January 2006 MRI which reflected inflammation of the femoris muscle and tendon.  Physical examination revealed effusion, tenderness, and pain throughout flexion and abduction both to 45 degrees.  The Veteran demonstrated pain upon abduction to 10 degrees and internal/external rotation to 40 degrees.  The examiner observed that the Veteran was unable to conduct any repetitive motions or "independently stand on his hip."  The examiner identified diagnoses of "chronic pain and decreased range of motion" of the left hip, "severe bursitis," inflammation and effusion.

The Veteran underwent a VA examination in December 2008 where he reported being "incapacitated with pain all of the time" in his left hip stemming from a 2005 fall, and was treated with "four injections" in his left hip and "6-8" hydrocodone a day for pain with "minimal benefit."  Physical examination revealed a "severe limp," unsteadiness, tenderness, and the use of a cane.  ROM flexion to 60 degrees ending at 70 degrees, abduction to 20 degrees and adduction to 10 degrees, external rotation to 35 degrees with pain ending at 40 and internal to 20 degrees with pain ending at 25, all demonstrating "severe" pain.  The examiner noted no reports of instability or flare-ups.

The Veteran underwent a VA examination in November 2015, which included a review of the medical records and an in-person interview.  Diagnoses of trochanteric pain syndrome, avascular necrosis, and degenerative arthritis were noted.  The Veteran reported that he felt his left hip was "torn" and was "unstable" without dislocating episodes.  The Veteran reported a decrease in his range of motion with pain, "especially with flexion," for which he takes hydrocodone.  The Veteran reported that the pain has gradually increased over the last three years and interrupts his sleep, but he has not had physical therapy or steroidal injections.  The Veteran reported daily flare-ups lasting up to twenty minutes and producing a "tearing sensation."  The examiner noted additional functional loss, noting that the Veteran is limited in walking, taking stairs, or traversing uneven terrains.  Physical evaluation revealed abnormal ROM consisting of flexion to 50 degrees, extension to 5 degrees, abduction to 0 degrees and adduction to 25 degrees and external rotation to 0 degrees and internal rotation to 0 degrees, with pain on flexion, extension and abduction.  Pain on weight bearing and tenderness were noted.  Repetitive testing could not be performed due to pain and crepitus was not observed.  

The Veteran was next afforded a VA examination for his left hip in December 2015 which consisted of a medical evidence review and in-person examination.  The examiner identified diagnoses of trochanteric bursitis and pain syndrome and identified necrosis and degenerative arthritis on past x-rays.  The Veteran reported "bilateral moderately severe hip pain and stiffness" which he treated with hydrocodone and Flexeril and had injections in the past that helped.  Flare-ups created increased pain and stiffness/weakness.  Physical evaluation revealed abnormal ROM consisting of flexion to 80 degrees, extension to 15 degrees, abduction to 30 degrees and adduction to 5 degrees and external rotation to 40 degrees and internal rotation to 25 degrees, with pain on all tests and decreased flexibility with an inability to cross legs.  Pain on weight bearing and tenderness were noted, with strength of flexion, extension and abduction all noted to be 3/5.  The examiner concluded that the exam demonstrated "severe" stiffness and "moderate to moderately severe" degenerative arthritis.

The Veteran was most recently examined in August 2016 and included an in-person examination and review of the record, with physical evaluations of the bilateral hips.  The Veteran reported "chronic generalized pain" that has gradually increased over the years and interferes with standing, walking and sitting.  Physical evaluation revealed abnormal ROM consisting of flexion to 90 degrees, extension to 0 degrees, abduction to 30 degrees and adduction to 15 degrees and external rotation to 40 degrees and internal rotation to 20 degrees, with pain on all tests and pain on weight bearing and generalized tenderness.  No crepitus or ankylosis was noted.  The examiner did not speculate on additional functional loss due to flare-ups as there was no flare-up occurring and opined that the Veteran's statements were not inconsistent with the examination findings.  The examiner concluded that the Veteran's left hip condition was at least as likely as not "the same" as it was since 2007, with no changes in ROM over the appeal period, just an increase in pain.  

Analysis

Based on the foregoing, the Board finds that the Veteran is entitled to separate 10 percent ratings for his service-connected left hip limitation of extension under DC 5251 and left hip limitation of flexion under DC 5252, and painful abduction of the left hip under DC 5253 for the entire appellate period.  See 38 C.F.R. § 4.71a.  See also 38 C.F.R. §§ 4.7, 4.40, 4.45; Mitchell, 25 Vet. App. at 42-43; DeLuca, 8 Vet. App. at 206-07.  See Johnston v. Brown, 10 Vet. App. 80 (1997) (a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant).

In this regard, the Board acknowledges that there is no range of motion testing of record evidencing limitation of extension of the left hip limited to 5 degrees prior to the November 2015 VA examination.  See e.g., October 2007 VA examination; December 2008 VA examination.  Similarly, there is only one instance of flexion to 45 degrees with pain.  See October 2007 VA examination (45 degrees flexion); see also November 2015 VA examination (50 degrees flexion).  Despite this, painful extension and flexion have been demonstrated consistently upon each VA examination throughout the period on appeal, including the August 2016 VA examiner's opinion that the Veteran's left hip disability has been consistent since 2007.  Moreover, competent medical evidence reflects that the Veteran's left hip range of motion is affected in all planes by functional impairment including less movement than normal, weakened movement, pain on movement, tenderness, and disturbance of locomotion, including a "severe limp."  The Veteran is both competent and credible in reporting the functional impact of his hip disability, including painful motion and additional related social and occupational effects.  Given painful motion on extension and flexion of his left hip, and considering the evidence of functional impairment and additional associated symptomatology including an altered gait, impaired ambulation, muscle weakness, incoordination, and crepitus, the Board finds that the criteria for separate 10 percent ratings, effective for the entire appellate period, for limitation of extension and limitation of flexion are more nearly approximated.  See 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59; see also Mitchell, 25 Vet. App. at 42-43; DeLuca, 8 Vet. App. at 206-07.

Higher ratings under DC's 5251 and 5252 are not warranted, however.  In this regard, the 10 percent rating assigned for limitation of extension under DC 5251 is the maximum schedular rating available based on limitation of extension.  38 C.F.R. § 4.71a.  Furthermore, as concerning the Veteran's painful limited flexion under DC 5252, the assignment of a higher 20 percent rating is not in order as there has been no evidence of flexion limited to 30 degrees demonstrated at any time.  38 C.F.R. § 4.71a.

The Board also finds that, based on the evidence of record, the Veteran is entitled to a separate 10 percent rating under DC 5253 for painful and limited abduction, adduction, and/or rotation.  The Board acknowledges that there is only one instance of a notated inability to cross his legs.  See December 2015 VA examination.  Despite this, painful abduction/adduction/rotation has been demonstrated consistently upon each VA examination throughout the period on appeal, including the August 2016 VA examiner's opinion that the Veteran's left hip disability has been consistent since 2007.  Moreover, competent medical evidence reflects that the Veteran's left hip range of motion is affected in all planes by functional impairment and he is both competent and credible in reporting the functional impact of his hip disability, including painful motion and additional related social and occupational effects. 

A higher 20 percent rating under DC 5253 is not warranted as it is assigned for abduction in the thigh with motion lost beyond 10 degrees.  38 C.F.R. § 4.71a, DC 5253.  At no point during the pendency of this appeal has the Veteran's left hip disability been productive of limitation of abduction of the thigh with motion lost beyond 10 degrees.

Further, although the Veteran experiences pain on rotation, abduction, and adduction, there is no indication that his reported pain and functional limitation caused by his left hip disability further limits his abduction to a level approximating the maximum 20 percent rating.  38 C.F.R. §§ 4.40, 4.45.  Importantly, separate ratings for painful abduction, adduction, and/or rotation may not be assigned, as these are all evaluated under the same diagnostic code, DC 5253, and it is settled law that a single disability is not entitled to more than one disability rating within the same diagnostic code unless the regulation expressly provides otherwise.  See Cullen v. Shinseki, 24 Vet. App. 74, 84 (2010).  Therefore, the Board finds that the Veteran's left hip limitation of rotation warrants no more than the 10 percent evaluation currently assigned under DC 5253.

In sum, the Board finds that, although the Veteran is not entitled to a rating higher than 10 percent for his service-connected left hip osteoarthritis under DC 5251, he is entitled to additional separate 10 percent ratings for the entire period on appeal, for his service-connected left hip abduction under DC 5253, and for his service-connected left hip limitation of flexion under DC 5252.  38 C.F.R. §§ 4.71a.  See also Fenderson, 12 Vet. App. at 126. 

The Board is cognizant that the assignment of multiple ratings based on the same symptoms or manifestations constitutes prohibited pyramiding.  38 C.F.R. § 4.14.  However, here, the Board finds that the assignment of separate ratings based on limitation of extension, flexion, and rotation of the left hip under DC 5251, 5252 and 5253 would not amount to pyramiding under 38 C.F.R. § 4.14.  In this regard, separate ratings under different diagnostic codes may be assigned where "none of the symptomatology for any of [the] conditions is duplicative of or overlapping with the symptomatology of the other . . . conditions."  Esteban v. Brown, 6 Vet. App. 259 (1994).  Here this key consideration has been met, in that limitation of extension, flexion, and rotation concern excursions of movements in different planes, and these limitations therefore constitute different bases for rating the hip.  38 C.F.R. § 4.45.  If these limitations are demonstrated, they must be rated separately to adequately compensate for functional loss associated with the service-connected left hip disability.  38 C.F.R. § 4.40; see also VAOPGCPREC 9-2004 (providing that separate ratings may be assigned for disability of the same joint where Veteran has both limitation of flexion and limitation of extension of same leg).

As for other potentially applicable diagnostic codes pertaining to the hip, the record does not contain evidence of ankylosis of the left hip or evidence that his left hip osteoarthritis is manifested by pathology such as femur fracture or flail joint; therefore, ratings under Codes 5250, 5254, or 5255 are not appropriate at any time during the rating period.  38 C.F.R. § 4.71a.

Although the record contains some evidence of muscle disuse atrophy, a separate rating under 38 C.F.R. § 4.73, DC 5313 through 5318, as relevant to muscle injuries of the pelvic girdle and thigh, would result in impermissible pyramiding.  38 C.F.R. § 4.14.  In this regard, the Board noes that, for VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement.  38 C.F.R. § 4.56(c) (2016).  Here, the Veteran's primary symptoms of pain and limitation of motion, as well as his additional functionally limiting symptomatology of muscle weakness, fatigability, and incoordination, have already been taken into account in the assignment of separate initial 10 percent ratings for his left hip limitation of extension and limitation of flexion, as discussed above.  38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59; see also Mitchell, 25 Vet. App. at 42-43; DeLuca, 8 Vet. App. at 206-07.  Accordingly, because separately rating the associated left thigh muscle atrophy would result in compensating the Veteran twice for duplicative and overlapping symptomatology, the Board finds that the assignment of a separate rating under DCs 5313-5318 is unwarranted.  See Esteban, 6 Vet. App. 259. 

Additionally, the record does not contain evidence that the Veteran would be entitled to a higher rating for his left hip degenerative arthritis were it rated under the schedule of ratings for muscle disabilities at 38 C.F.R. § 4.73.  In this regard, there is no objective indication on the part of the Veteran or by any health care provider that his disuse atrophy of the left thigh would be classified as the type contemplated by the criteria for moderately severe or severe disability of the muscles of the pelvic girdle and/or thigh.  38 C.F.R. § 4.73, DCs 5313-5318.  See also 38 C.F.R. § 4.56 (c) (concerning the evaluation of moderately severe muscle injuries). 

The Board has also considered the Veteran's competent complaints of severe left hip pain, weakness, incoordination, and disturbance of locomotion, as well as the potential additional limitation of functioning resulting therefrom, under the provisions of 38 C.F.R. §§ 4.40 , 4.45, for all rating codes potentially applicable to his disability.  See DeLuca, 8 Vet. App. at 207-08.  However, there is insufficient objective evidence (shown on either VA examinations or in his treatment records) to conclude that his left hip symptoms caused such additional functional limitation as to warrant increased compensation pursuant to provisions of 38 C.F.R. § 4.40 or 38 C.F.R. § 4.45 or the holding in DeLuca, supra.  And, as noted, his complaints of pain, weakness, incoordination, and disturbance of locomotion, including during flare-ups, are already contemplated in the separate 10 percent ratings assigned his left hip limitation of extension and flexion.  There is no indication that the manifestations of his left hip disability, including pain, weakness, incoordination, crepitus, and altered gait, have caused functional loss greater than that contemplated by the 10 percent ratings assigned under DCs 5251, 5252, and 5253.  And while the Veteran no doubt experiences impairment due to his service-connected left hip disabilities, his functional impairment would need to be equivalent to flexion of the left hip not greater than 30 degrees, or abduction lost beyond 10 degrees, or ankylosis, or left hip flail joint, or impairment of the left femur, or moderately severe muscle atrophy, in order for a higher or separate rating to be assigned, and this has simply not been shown.  38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, DCs 5250-5255; DeLuca, 8 Vet. App. at 207-08.

Other Considerations

Lastly, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record with regard to the claims of increased ratings for his left hip, and low back with radicular pain.  See Doucette v. Shulkin, No. 15-2818, 2017 U.S. App. Vet. Claims LEXIS 319, *8-9 (Vet. App. March 17, 2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record)."

ORDER

Entitlement to a rating of 40 percent, but no higher, for service-connected low back is granted, for the entire appellate period, subject to the laws and regulations governing the payment of monetary benefits. 

Entitlement to a separate rating of 20 percent, but no higher, for service-connected radiculopathy of the left lower extremity is granted, for the entire appellate period, subject to the laws and regulations governing the payment of monetary benefits. 

Entitlement to a separate rating of 10 percent, but no higher, for limitation of extension due to service-connected left hip is granted, for the entire appellate period, subject to the laws and regulations governing the payment of monetary benefits. 

Entitlement to a separate rating of 10 percent, but no higher, for limitation of flexion due to service-connected left hip is granted, for the entire appellate period, subject to the laws and regulations governing the payment of monetary benefits.

Entitlement to a separate rating of 10 percent, but no higher, for limitation of rotation due to service-connected left hip is granted, for the entire appellate period, subject to the laws and regulations governing the payment of monetary benefits.


REMAND

As noted in the Introduction, the Veteran was successful in his recent appeal to the extent that CAVC has obligated the Board to further develop the Veteran's pending claim for service connection for a neck disorder, secondary to his left knee disability.  It is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to assist the claimant in obtaining the evidence needed to substantiate a claim.  38 U.S.C.A. § 5107(a), 5103A (West 2014); 38 C.F.R. § 3.159 (2016). 

The Board is required to consider all issues raised either by the claimant or by the evidence of record.  Robinson v. Mansfield, 21 Vet. App. 545, 552 (2008).  When determining service connection, all theories of entitlement, direct and secondary, must be considered.  Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). 

Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439 (1995). 

The Veteran was afforded a VA examination in September 2008 for his neck disorder.  Although the VA examiner provided thorough and well-supported opinions regarding whether the Veteran's neck disorder was due to service or caused by his service-connected left knee disability, there was no opinion provided regarding whether the Veteran's neck disorder was aggravated by his service-connected left knee disability.  38 C.F.R. § 3.310 (2016).  An opinion that something "is not related to" or "is not due to" does not answer the question of aggravation.  Allen, 7 Vet. App. at 448.

Given the evidence outlined above, the Veteran should now be afforded a VA examination of his neck with medical opinions concerning whether the Veteran's neck disorder arose from service or is otherwise related to any incident of service, to include his service-connected left knee disability.  An opinion is specifically required to determine whether his neck disorder is aggravated (permanently worsened beyond normal progress of the disorder) by his service-connected left knee disability.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

In addition, as noted in the introduction, the RO has associated the Veteran's inability to work with his service-connected spine, hip, and knee disabilities.  Thus, the issue of entitlement to service connection for a cervical spine disorder is inextricably intertwined with the pending issue of TDIU.  Furthermore, the Board finds that it is premature to adjudicate entitlement to a TDIU prior to April 2, 2009.  Specifically, the claim of service connection for a neck disorder could potentially impact the pending TDIU issue as the service connection claim predates the earlier effective date for TDIU which is currently being sought.  See Harris v. Derwinski, 1 Vet. App. 180 (1991).

Accordingly, the case is REMANDED for the following action:

1.  Obtain and associate any and all non-duplicative medical records.

2.  Schedule the Veteran for a VA examination to obtain a medical opinion clarifying whether the Veteran has a current neck disability that is related to his period of service or aggravated by his service-connected left knee disability.  The claims file must be provided to and be reviewed by the examiner. Any tests or studies deemed necessary should be conducted, and the results should be reported in detail. 

a) The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current cervical spine disorder is due to the Veteran's periods of service, including his service-connected left knee injury. 

b) If not caused by or related to service, the examiner should provide an opinion as to whether the Veteran's cervical spine disorder is aggravated (permanent worsening of the underlying disability beyond natural progress) by the left knee disability.  In discussing this inquiry, the examiner is directed to understand that the term "aggravated" in this context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology.

The examiner should consider the Veteran's lay statements with regard to onset and continuity of symptomatology of his neck disorder.  The examiner should also provide a rationale for the conclusions reached.  If the examiner believes that an opinion cannot be provided without resorting to speculation, then he/she must provide a detailed medical explanation as to why this is so.

3.  After resolving the pending service connection claim for the neck disorder, readjudicate the TDIU claim.  If the benefit sought on appeal remains denied, furnish to the Veteran an appropriate supplemental statement of the case and afford him an appropriate time period for response before the claims file is returned to the Board for further appellate consideration.

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).




______________________________________________
H.M. WALKER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs