Citation Nr: 1757682 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 10-47 410 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for degenerative disc disease of the cervical spine. 2. Whether new and material evidence has been received to reopen a claim of service connection for post-traumatic stress disorder ("PTSD"). 3. Entitlement to service connection for rheumatoid arthritis, of the lower back. 4. Entitlement to service connection for chronic obstructive pulmonary disease ("COPD"), to include as due to exposure to mustard gas. 5. Entitlement to service connection for insomnia. 6. Entitlement to an increased evaluation, in excess of 40 percent, for the service-connected lumbar strain. 7. Entitlement to a total disability rating based upon individual unemployability due to service-connected disease or injury ("TDIU"). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Timbers, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2012). The Veteran served as a member of the United States Army, with active duty service from June 1979 through June 1982, and from January 1989 through May 1990. This appeal comes to the Board of Veterans' Appeals ("Board") from two rating decisions, dated May 2010 and April 2013, issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Waco, Texas (hereinafter Agency of Original Jurisdiction ("AOJ")). In pertinent part, the May 2010 rating decision denied the Veteran's claims for entitlement to service connection for PTSD, degenerative disc disease of the cervical spine, rheumatoid arthritis of the low back. Additionally, the May 2010 rating decision denied the Veteran's claim for entitlement to an increased evaluation of his service-connected lumbar spine disability and his claim for entitlement to an award of a TDIU. Following this May 2010 denial, the Veteran submitted a notice of disagreement ("NOD") on June 9, 2010, which expressed disagreement with the May 2010 rating decision. However, as the Veteran did not specify which issues he wished to appeal, the AOJ sent a follow-up correspondence on June 11, 2010 seeking clarification. In separate letters, dated in June 2010, the Veteran and his representative clarified that the issues the Veteran wished to appeal were the claims seeking entitlement to service connection, for PTSD and a low back disability, the claim for entitlement to an increased rating of the service-connected lumbar spine, and the claim for a TDIU. Notably, the Veteran expressed his intent to not appeal the May 2010 denial of his claim for entitlement to service-connection for degenerative disc disease of the cervical spine. Thereafter, the Veteran submitted a request to reopen his previously denied claim for entitlement to service-connection for degenerative disc disease of the cervical spine. See June 2011 Report of General Information. In addition to the claim to reopen, the Veteran submitted claims for entitlement to service-connection for COPD, and insomnia. These claims were denied in an April 2013 rating decision, which the Veteran timely appealed. In April 2017, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing, held at the RO. A transcript of this hearing has been reviewed and associated with the Veteran's claims file. This appeal was processed using Virtual VA and the Veterans Benefits Management System ("VBMS"). Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The issues of entitlement to service-connection for a cervical spine disability, PTSD, insomnia, a low back disability, and COPD, entitlement to an increased evaluation for the service-connected lumbar back strain, entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. In a May 2010 Rating Decision, the Veteran was denied entitlement to service-connection for degenerative disc disease of the cervical spine. The Veteran was notified of this denial, and his appellate rights, but he did not appeal this denial and it became final. 2. Evidence received since the May 2010 Rating Decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the Veteran's claim of service-connection for degenerative disc disease of the cervical spine. CONCLUSIONS OF LAW 1. The May 2010 Rating Decision, which denied entitlement to service-connection for degenerative disc disease of the cervical spine, is final. 38 U.S.C. § 7104(b) (West 2012); 38 C.F.R. §§ 3.156, 3.160(d), 20.1100, 20.1104 (2017). 2. The evidence submitted subsequent to the May 2010 Rating Decision is new and material, and the issue of entitlement to service-connection for degenerative disc disease of the cervical spine, is reopened. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act ("VCAA") must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his or her claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). The VCAA required notice provisions were accomplished by numerous letters, including those dated in October 2011 and May 2013, which informed the Veteran of the information and evidence not of record that is necessary to substantiate his claim, the information and evidence that the VA will seek to provide, and the information and evidence the Veteran is expected to provide. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The letters also informed the Veteran how disability ratings and effective dates are established. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The Veteran was afforded the opportunity to appear and testify before the undersigned Veterans Law Judge ("VLJ") via videoconference hearing in April 2017. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge ("VLJ") who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ noted the basis of the prior determinations and noted the elements of the claims that were lacking to substantiate the claims for benefits. The VLJ specifically noted the issues as including the issues listed on the title page of this decision. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that any error in notice provided during the Veteran's hearing constitutes harmless error. Based upon the above, the Board finds that VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA. Moreover, the neither the Veteran nor his representative have advanced any procedural arguments in relation to VA's duties to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances . . . we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran . . ."). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Lastly, the Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). General Laws and Regulations Governing Entitlement to Service Connection: Prior to the Board's determination as to whether the Veteran is entitled to an award of service-connection for degenerative disc disease of the cervical spine, the Board must first determine whether the Veteran has submitted new and material evidence sufficient to reopen his claim. As noted in the Introduction, the Board finds that the Veteran was initially denied entitlement to service-connection for his cervical spine in a May 2010 Rating Decision. The AOJ denied the Veteran's claim as the medical evidence available at the time did not show the existence of a current disability. In a June 2011 letter, the Veteran stated he did not wish to appeal his claim of entitlement to service-connection for the cervical spine. As such, the May 2010 denial became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.302, 20.1103. The Veteran filed his current claim for entitlement to service-connection in June 2011. See June 2011 Report of General Information. In his application to reopen, the Veteran specified that he was receiving treatment for degenerative disc disease of the cervical spine at the Dallas VAMC, and requested that the AOJ obtain his medical records. The Veteran's updated VA medical records were obtained and associated with the claims file. However, in April 2013, the AOJ continued to deny the Veteran's claim for entitlement to service-connection for degenerative disc disease of the cervical spine. The April 2013 Rating Decision did not make it clear as to whether the Veteran's claim to reopen had been granted. Rather, the AOJ explained that the Veteran's claim for entitlement to service-connection was denied for failure to establish an association between his cervical spine disability and his active duty service. The Veteran timely appealed this denial, and in a May 2015 Statement of the Case, the AOJ asserted that the Veteran's request to reopen his claim was denied. Once again, the AOJ stated that the Veteran failed to show a nexus between his current cervical spine disability and his active duty service. Regardless of the RO's actions, the Board has jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)); See also Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92 (March 4, 1992). Accordingly, the Board must initially determine whether there is new and material evidence to reopen the issue before proceeding to adjudicate the underlying merits of the claim. If the Board finds that no new and material evidence has been provided, that is where the analysis must end. A previously denied claim may be reopened by the submission of new and material evidence. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence is defined as evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Here, the Board finds that the Veteran's updated VA treatment records from the Dallas VAMC constitute new evidence. Specifically, these records were not available at the time the May 2010 Rating Decision was issued, and therefore are considered "new" evidence. The Board must thus determine whether this new evidence is material. The Board is aware that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. Moreover, the Court of Appeals for Veterans Claims ("Court") explained this standard is intended to be a low threshold. Id. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). As applied to the Veteran's claim for entitlement to service-connection for degenerative disc disease of the cervical spine, the Board finds that the new medical evidence is material. Specifically, the May 2010 Rating Decision denied the Veteran's claim for entitlement to service-connection because the evidence available at the time did not reflect the existence of a current diagnosis or any evidence of ongoing treatment. The Dallas VAMC records show the Veteran was subsequently diagnosed with degenerative disc disease of the cervical spine. Furthermore, under the standard articulated in Shade, the Board finds this new evidence triggers VA's duty to assist by providing a medical opinion. See Shade, 24 Vet. App. at 118. For service connection claims, VA is obliged to provide an examination or obtain a medical opinion in a claim when (1) the record contains competent evidence that the claimant has a current disability, (2) the record indicates that the disability or signs and symptoms of disability may be associated with active service, and (3) the record does not contain sufficient information to make a decision on the claim. See 38 U.S.C. § 5103A (d); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In statements to the Board, the Veteran has alleged his cervical spine disability is directly related to his active duty service, or alternatively, was caused by his service-connected lumbar spine disability. The Board finds that these statements, considered in conjunction with the new medical evidence establishing a current disability, triggers VA's duty to assist by providing a medical opinion which properly evaluated the Veteran's claim of secondary service connection. Therefore, based upon the above analysis, the Board finds sufficient evidence to reopen the Veteran's claim for entitlement to service-connection for degenerative disc disease of the cervical spine. However, as will be discussed in greater detail in the REMAND portion of this decision, the Board finds that additional development is required before the Board may make a determination on the merits of the Veteran's claims for entitlement to service connection. ORDER New and material evidence having been submitted, the claim of entitlement to service-connection for degenerative disc disease of the cervical spine is reopened, and to this extent the appeal is granted. REMAND While the Board sincerely regrets the additional delay, the Veteran's claim must again be remanded in order to ensure that VA has adequately assisted the Veteran in the development of his claim. First, as the Board has outlined above, the Veteran has submitted new and material evidence sufficient to reopen his claim for entitlement to service-connection for a cervical spine disability. Before the Board is able to adjudicate his claim, a VA examination should be provided to the Veteran in order to assess the etiology of his current cervical spine disability. This examination should include an opinion as to whether the Veteran's current cervical spine disability was caused by, or aggravated, by the Veteran's service-connected lumbar spine disability. Second, the Board finds that a remand is required in order to obtain treatment records relevant to the Veteran's appeal. During the April 2017 hearing, the Veteran testified that he was diagnosed with rheumatoid arthritis by the Dallas VAMC. He also stated that he received treatment at Dallas for symptoms of this disability, to include aquatic therapy. The Veteran was unsure of the date of his actual diagnosis and a review of the available treatment records does not indicate that the Veteran has been clinically diagnosed with any such disability. However, as the Veteran was unsure of the date of his diagnosis, the Board finds that the AOJ should obtain and updated set of the Veteran's VAMC treatment records and then make a determination as to whether a current rheumatoid arthritis disability exists. If any such disability exists, then the examiner who conducts the cervical spine examination should be asked to render an opinion as to an etiology and whether any diagnosed disability was caused by, or aggravated, by the Veteran's service-connected lumbar spine disability. Similarly, the Veteran testified that he continues to receive private medical treatment for his service-connected lumbar strain disability. The Veteran identified this provider as a Dr. D, and provided a mailing address within the city of Dallas, Texas. The Board has reviewed the Veteran's claims file but finds no evidence these medical records have been obtained. As such, a remand is required so that these private medical records may be obtained and associated with the Veteran's claims file. The Veteran additionally testified that his service-connected lumbar strain disability has worsened since the date of the last VA examination. As such, the Board finds that the Veteran should be afforded a new examination in order to evaluate the current severity of his service-connected lumbar strain disability. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The Board is aware that the Veteran was provided a VA examination in March 2017, but that he failed to appear for this scheduled examination. However, the Board also recognizes that there was confusion as to the Veteran's correct address of record during this time. See e.g. September 2019 Report of General Information. Therefore, the AOJ should ensure that the notice of any scheduled VA examination is mailed to the current address of record. Third, turning to the Veteran's claim for entitlement to service connection for PTSD, the Board finds that a remand is required in order to resolve conflicting evidence of record. As noted on the title page of this decision, the Veteran's claim for entitlement to service-connection for PTSD is in essence a request to reopen a previously denied claim. The Veteran was initially denied entitlement to service connection for PTSD in a December 2002 Rating Decision, as the AOJ found the Veteran had not been formally/clinically diagnosed with a PTSD disability. Thereafter, in February 2009, the Veteran submitted his current appeal to reopen his prior denial of entitlement to service-connection for PTSD. The Veteran's request was initially denied in a May 2010 Rating Decision, as the AOJ explained the evidence of record did show that the Veteran had been clinically diagnosed with a PTSD disability. During the Veteran's April 2017 hearing, he testified that he continued to receive treatment for his PTSD disability at the Houston VAMC, where he had been diagnosed by a physician with a PTSD disability. On remand, the AOJ should ensure that all pertinent VA treatment records are associated with the claims folder. Fourth, with respect to the Veteran's claim for entitlement to service-connection for COPD, the Board finds that additional development is required. During his April 2017 hearing, the Veteran testified that he was exposed to mustard gas during his active duty service. Claims and appeals based on mustard agent or Lewisite exposure received on or after January 19, 2005, must be sent to Muskogee AOJ for centralized processing. See M21-1, Live Manual, Part IV, Subpart ii, Chapter 1, Section F, Topic 2, Blocks a and b (change date August 7, 2015). The Veteran's claim for service connection was received in April 2011, which is after January 19, 2005. Therefore, the Veteran's appeal must be transferred to the Muskogee AOJ. If the claims folder is in electronic format, the claims folder should be transferred to the Muskogee AOJ according to the guidelines contained in the M21-1, Live Manual, Part III, Subpart ii, Chapter 5, Section G (change date July 14, 2015). Specific development unique to mustard gas claims is described in the M21-1 Live Manual and should be carried out by the Muskogee AOJ, if the Veteran meets the requirements listed in the M21-1: Specifically, sending a Mustard gas development letter to the Veteran; requesting access to the U.S. Department of Defense (DoD) and VA Chemical Biological Warfare Exposure System (Chem-Bio) consolidated database for mustard gas; forwarding requests for verification of full-body exposure to Compensation Service's mustard gas mailbox; and particular development when veterans are not listed in the Chem-Bio database. See M21-1, Live Manual, Part IV, Subpart ii, Chapter 1, Section F, Topic 3, Blocks b, c, d, e (change date August 7, 2015). Notably, there is no indication in the record whether the need for any of this potential development was addressed by Waco AOJ in the instant case. Therefore, a remand for the Muskogee AOJ to perform any necessary development for the mustard gas claim on appeal is required. Finally, as the Veteran has claimed entitlement to service-connection for insomnia, as secondary to PTSD, and for an award of a TDIU, the Board finds these issues are inextricably intertwined with the claim for service-connection of PTSD and the claim for an increased evaluation of the lumbar spine and must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has ... Board must consider all potential theories of entitlement raised by the evidence). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. First, the electronic claims folder must be sent to the Muskogee AOJ for centralized processing because the claim for entitlement to COPD is based on exposure to mustard agent or Lewisite. See M21-1, Live Manual, Part IV, Subpart ii, Chapter 1, Section F, Topic 2, Blocks a and b (change date August 7, 2015). Then, the Muskogee AOJ should perform any specific development unique to mustard gas claims as described in the M21-1 Live Manual: (a) In particular, the AOJ should send a mustard gas development letter to the Veteran. (b) Then, if deemed necessary by the facts of the case, the AOJ should perform the following additional development: Request access to the U.S. Department of Defense (DoD) and VA Chemical Biological Warfare Exposure System (Chem-Bio) consolidated database for mustard gas; forward requests for verification of full-body exposure to Compensation Service's mustard gas mailbox; and complete any other development needed if the Veteran is not listed in the Chem-Bio database. See M21-1, Live Manual, Part IV, Subpart ii, Chapter 1, Section F, Topic 3, Blocks b, c, d, e (change date August 7, 2015). 2. Second, the AOJ should also contact the Veteran, and, with his assistance, identify any additional outstanding records of pertinent medical treatment from VA or private health care providers that have treated him for his service-connected lumbar spine disability and PTSD. Specifically, the AOJ is requested to obtain the medical records identified by the Veteran during his April 2017 hearing. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If the AOJ's attempts to obtain any outstanding records results in a finding that such records are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). The AOJ should additionally obtain the most current and updated version of the Veteran's VA treatment records from the Dallas and Houston VAMCs, as well as any other identified VA facility, and associate these records with the Veteran's claims file. 3. After any additional records are associated with the claims file, the AOJ should schedule the Veteran for the appropriate VA joints examination to determine the etiology and severity of the Veteran's cervical spine disability. This examiner should further be asked whether the Veteran experiences any diagnosed arthritic disability of the low back, to include rheumatoid arthritis Access to the VBMS and Virtual VA claims file must be made available to the VA examiner for review. The VA examiner must provide a clear explanation for the opinion, to include any comment on any credibility issues raised by the record from a medical perspective. Following a review of the entirety of the claims file, the examiner is asked to furnish an opinion with respect to the following questions: (a) Is it at least as likely as not (i.e. a 50 percent probability or greater) that the cervical spine disability is related to the Veteran's active duty service, to include his in-service treatment for back pain? (b) Is it at least as likely as not (i.e. a 50 percent probability or greater) that the cervical spine disability was caused by or aggravated by the Veteran's service-connected lumbar spine disability? Governing regulations provide that service connection is permissible on a secondary basis if a claimed disability is proximately due, the result of, or aggravated by a service-connected disability. See 38 C.F.R. § 3.310. The term aggravation is defined as a chronic and permanent worsening of the underlying condition beyond its natural progression versus just a temporary or intermittent flare-up of symptoms. If the examiner determines there has been aggravation, he or she should try and quantify the amount of additional disability the Veteran had, above and beyond that he had prior to the aggravation. (c) The examiner should report as to whether, following a review of the Veteran's recent VA medical records, there exists any diagnosed arthritic disability of the Veteran's low back, to include any diagnosis for rheumatoid arthritis. (d) If an arthritic disability of the low back exists, the examiner is asked to opine as to whether it is at least as likely as not (i.e. a 50 percent probability or greater) that any arthritic disability of the low back is related to the Veteran's active duty service, to include his in-service treatment for back pain? (e) If an arthritic disability of the low back exists, the examiner is asked to opine as to whether it is at least as likely as not (i.e. a 50 percent probability or greater) that any arthritic disability of the low back was caused by or aggravated by the Veteran's service-connected lumbar spine disability? The examiner must provide a complete rationale for all opinions expressed. As part of the rationale, the examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 4. After any additional records are associated with the claims file, the AOJ should schedule the Veteran for the appropriate VA examination to determine the current severity of the Veteran's service-connected lumbar spine disability. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. A complete history should be elicited directly from the Veteran, and any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. When conducting range of motion testing of the lumbar spine, the VA examiner is asked to specify at what degree the Veteran experiences pain (e.g. flexion to 60 degrees, with pain beginning at 20 degrees). The examiner should also note the degree at which pain begins with repetitive range of motion testing. If no pain is observed or reported during range of motion testing, the examiner is requested to state that no pain occurred. If the examiner finds that pain is observed during range of motion testing and repetitive range of motion testing, the examiner should then determine whether the lumbar spine disability is productive of functional loss, to specifically include any additional limitation of motion due to pain, weakness, premature or excess fatigability, and incoordination causing additional disability beyond that reflected on the range of motion measurements. Any determination concerning this functional loss should be expressed in degrees of additional range of motion loss. If this is not feasible to determine without resort to speculation, the examiner must provide an explanation for why this is so. For example, the examiner should state that such is not feasible to determine due to a lack of information or due to the limits of medical knowledge. If the determination cannot be made due to a lack of information, the examiner should state what information would allow for such a determination. 5. The AOJ should notify the Veteran that it is his responsibility to report for any scheduled VA examination and to cooperate in the development of the claim, and that the consequences for failure to report for any scheduled VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. In the event that the Veteran does not report for any scheduled VA examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 6. After completing the above development, the AOJ should review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. See Stegall, Vet. App. at 271. 7. Thereafter, the AOJ should consider all of the evidence of record and readjudicate the claims on appeal. If the benefit sought is not granted, issue a Supplemental Statement of the Case ("SSOC") and allow the Veteran and his representative an opportunity to respond. The appellant 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). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs