Citation Nr: 1803823	
Decision Date: 01/22/18    Archive Date: 01/31/18

DOCKET NO.  11-13 527	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Des Moines, Iowa


THE ISSUES

1. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected posttraumatic stress disorder (PTSD) and medications taken for PTSD.

2. Entitlement to an initial rating in excess of 20 percent for cervical spine arthritis.

3. Entitlement to a rating in excess of 20 percent prior to September 12, 2013, and in excess of 40 percent thereafter, for degenerative joint disease of the thoraco-lumbar spine.

4. Entitlement to an initial compensable rating for bilateral hearing loss.

5. Entitlement to service connection for obstructive sleep apnea.

6. Entitlement to service connection for cephalgia (headaches).

7. Entitlement to an increased rating for tinea pedis (athlete's feet).

8. Entitlement to a rating in excess of 10 percent prior to July 10, 2015, and in excess of 20 percent thereafter, for right lower extremity radiculopathy.


REPRESENTATION

Veteran represented by:	Vietnam Veterans of America


ATTORNEY FOR THE BOARD

Kelly A. Gastoukian, Associate Counsel


INTRODUCTION

The Veteran had active duty from July 1975 to July 1995.

These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2010 and November 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, and June 2015 and October 2015 rating decisions issued by the VA RO in Des Moines, Iowa. Jurisdiction for all issues now resides with Des Moines, Iowa.

As concerns the Veteran's claim for entitlement to a rating in excess of 20 percent prior to September 12, 2013, and in excess of 40 percent thereafter, for degenerative joint disease of the thoraco-lumbar spine, the Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that the filing period for a substantive appeal in a claim for VA benefits is not jurisdictional, and VA may waive any issue of timeliness in the filing of a substantive appeal, either explicitly or implicitly. Percy v. Shinseki, 23 Vet. App. 37, 45 (2009) (as the RO had never addressed the issue of timeliness in the statement of the case (SOC) and the Veteran was not informed that there was a timeliness issue until his claim was before the Board, the Court determined that the RO had essentially waived any objections it might have offered to the timeliness, and had implicitly accepted the Veteran's appeal). Furthermore, the Court has held that, as with the timeliness of a substantive appeal, in determining the adequacy of a substantive appeal, "the Board's use of a jurisdictional, i.e., nondiscretionary, analysis [is] not appropriate," and that VA may waive "any ... pleading requirements on the part of the appellant." Percy, 23 Vet. App. at 47, citing Gomez v. Principi, 17 Vet. App. 369, 372-73 (2003).

In this case, the Board notes that the July 2010 rating decision granted an increased rating to 20 percent. Subsequent to the issuance of that rating decision, a substantive appeal objecting to the increased rating was received from the Veteran; however, a notice of disagreement was not received. Then, in August 2014, a rating decision was issued which granted an increased rating to 40 percent, and a statement of the case was issued that continued to deny a rating in excess of 20 percent prior to September 12, 2013. Subsequently, the RO scheduled VA examinations for the back in September 2014 and September 2015, and supplemental statements of the case (SSOC) issued in March 2016 and October 2016 indicated that the issue of entitlement to a higher rating for degenerative joint disease of the thoraco-lumbar spine was on appeal. Therefore, in light of the holding in Percy, the Board finds that the VA took action (namely, informing the Veteran via letter, including the issue on multiple SSOCs and arranging for an examination) that reasonably led the Veteran to believe that the issue of degenerative joint disease of the thoraco-lumbar spine was on appeal before the Board. Thus, the Board finds that this issue is correctly before it and can be decided herein. 

The issues of entitlement to service connection for erectile dysfunction and sleep apnea and entitlement to increased ratings for cervical spine arthritis, hearing loss, degenerative joint disease of the thoraco-lumbar spine and right lower extremity radiculopathy are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).





FINDINGS OF FACT

1. In November 2017, prior to the promulgation of a decision on the issues on appeal, VA received written notification from the Veteran, through his authorized representative, that he wished to withdraw his appeal for a rating in excess of 10 percent for tinea pedis (athlete's feet).

2. The Veteran has headaches that are at least as likely as not attributed to active service.


CONCLUSIONS OF LAW

1. The criteria for withdrawal of an appeal by the Veteran (or his or her authorized representative) have been met for the appeal of a rating in excess of 10 percent for tinea pedis (athlete's fee)t. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).

2. Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for headaches are met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Withdrawn Issue

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204.

In November 2017, VA received written notification from the Veteran, through his authorized representative, that he wished to withdraw his appeal for a rating in excess of 10 percent for tinea pedis (athlete's feet). Thus, no allegations of errors of fact or law remain for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal, and it must be dismissed.

II. Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). That decision requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2017). 

Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. 3.307, 3.309(a) (2017). 

Where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has that chronic disability, service connection can be granted. That does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word chronic. When the disease entity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b) (2017).

If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing a service connection claim. 38 C.F.R. § 3.303(b) (2017). Continuity of symptoms may be established if a claimant can demonstrate (1) that a condition was noted in service; (2) evidence of post- service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Continuity of symptomatology applies only to those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309(a) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

The Veteran contends that his headaches began in service. The Veteran also asserts that cephalgia is caused by his cervical spine condition. 

The service medical records show treatment for headaches in September 1978. He also had several complaints of headaches throughout service that accompanied other symptoms. 

In September 2013, Dr. P.J.Y. examined the Veteran and diagnosed cephalgia secondary to cervical spondylosis. The examiner noted progressive cephalgia since the Veteran's injury to his lumbar region and cervical and cervicothoracic regions. The Veteran reported daily episodes of cephalgia which lasted two to twenty-four hours and presented as greater occipital neuralgia. Dr. P.J.Y. opined it was more likely than not that cephalgia was directly and causally related to injury to the lumbar region with subsequent involvement of the cervical and cervicothoracic regions by a process of chronic and constant biomechanical compensation and adaptation. He further opined that it was more likely than not that cephalgia was directly and causally related to service.

The Veteran was afforded a VA examination in September 2014. The Veteran reported headaches three to four times a week since 1979 when he would use a torch to seal lines with lead for just under two hours while in a manhole for four hours at a time. He further reported that he currently had headaches once a month. The examiner diagnosed cephalgia from 2013. The examiner opined that headaches were less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner noted onset of headaches was early in service and would not be due to cervical spondylosis that developed afterward. The examiner also noted that the headache pain pattern was not consistent with cervicogenic headaches, nor do lumbar spine conditions cause headaches. The examiner further noted that the Veteran did not have a chronic headache pattern in service evidenced by one visit for tension headaches with other various complaints of headaches along with acute viral illnesses. The examiner stressed there was no regular care sought for headaches while regular care was sought for other conditions.

A November 2015 VA treatment record shows the Veteran has headaches for which he takes naproxen three times daily.

In this case, the Board finds that the evidence supports the claim for service connection for headaches. The Board finds the September 2013 private examination report to be probative that the Veteran's diagnosed chronic headache condition onset during active service. Moreover, the Veteran has consistently reported symptoms of headaches in statements submitted to support his claim, and treatment by VA medical personal was noted during the course of the appeal. While the Board acknowledges that VA examination reports of record do not explicitly note that the Veteran's current headache disability is related to active service, the September 2014 VA examination report specifically acknowledges headaches were present during active service. 

The Board also notes that the Veteran has consistently provided credible and competent reports of experiencing severe headaches in service and after separation of service. Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). Layno v. Brown, 6 Vet. App. 465 (1994) (headaches are a subjective condition given to lay observation). Here, the Veteran's current assertions have been consistent throughout the appeal. Thus, because the Veteran is competent to provide evidence regarding the presence of headaches and because he has been found to be credible, the Board credits his assertions regarding the continuity of symptomatology of headaches from service to the present. The Board finds that there is nothing of record to call into question the credibility of the Veteran's report of chronic symptomatology. Therefore, the Board finds that the evidence shows that it is at least as likely as not that headaches were incurred in service.

Accordingly, resolving reasonable doubt in favor of the Veteran, the claim for service connection for headaches is granted. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

The appeal for a rating in excess of 10 percent for tinea pedis (athlete's feet) is dismissed.

Service connection for headaches is granted.


REMAND

Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims.

Erectile Dysfunction

The Veteran initially filed a claim for erectile dysfunction, as secondary to PTSD. The RO noted that the Veteran's medical records showed support for a current diagnosis of erectile dysfunction, but since the RO denied the claim of entitlement to service connection for PTSD, the claim for erectile dysfunction was denied as well. Since the initial denial, the Veteran has been granted service connection for PTSD. The theory of entitlement that erectile dysfunction should be service connected, as secondary to medications taken for PTSD has not been addressed. 

Under 38 U.S.C. § 5103A, VA is obligated to provide a Veteran with a medical examination or obtain a medical opinion if the evidence of record demonstrates "some causal connection between his disability and his military service." Wells v. Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003). Since the Veteran has provided some evidence for the claim that erectile dysfunction may have occurred secondary to the medications he takes for service-connected PTSD, this triggers VA's duty to provide a medical examination and opinion. Therefore, an examination is necessary before the Board can decide the claim.

Cervical Spine

In DeLuca v. Brown, 8 Vet. App. 202, 205 (1995), the Court held that, for disabilities evaluated on the basis of limitation of motion, VA was required to apply the provisions of 38 C.F.R. §§ 4.40, and 4.45, pertaining to functional impairment. The Court instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, or incoordination. Such inquiry was not to be limited to muscles or nerves. These determinations were, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to factors such as pain, weakened movement, excess fatigability, or incoordination.

An examination which does not address any possible change in range of motion due to pain and any functional loss during flare-ups lacks sufficient detail necessary for a disability rating, and it should be returned for the required detail to be provided. Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011).

The Veteran was most recently afforded a VA examination for his service-connected cervical spine disability in June 2016. The examination indicated that the Veteran did not experience flare-ups and therefore no information regarding functional loss due to flare-ups was reported. However, the Veteran reported he had good days and bad days. He further reported an increase in pain on bad days, and the examiner noted activities that would cause increased symptoms. The bad days and increased pain and symptomatology are the functional equivalent of flare-ups. The functional loss that resulted from these activities was not noted or quantified. Therefore, the Board will remand the matter for a new VA examination that addresses the functional loss during flare-ups and quantifies the loss of range of motion during the Veteran's reported flare-ups.

Bilateral Hearing Loss

The Veteran last underwent a VA examination for bilateral hearing loss in September 2015. During the examination the Veteran's bilateral hearing loss was manifested by the following audiometric testing results:





HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
60
50
60
LEFT
15
15
50
60
75

Speech audiometry revealed speech recognition ability of 90 percent in the right ear and of 86 in the left ear.

The Veteran's representative stated in the November 2017 Informal Hearing Presentation (IHP) that the Veteran has reported that his hearing loss has worsened since the September 2015 VA examination. 

VA's duty to assist a claimant includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d)(1) (2012); 38 C.F.R. § 3.159(c)(4) (2017). The medical examination provided must be thorough and contemporaneous and consider prior medical examination and treatment. Green v. Derwinski, 1 Vet. App. 121 (1991). Evidence of a change in the condition or allegation of worsening of the condition renders an examination inadequate for rating purposes. Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007); see also Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Given the Veteran's assertion that his bilateral hearing loss has worsened, a remand is warranted for a new VA examination. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017).

Sleep Apnea

The Veteran seeks service connection for sleep apnea, which he asserts began while he was in service. The Veteran underwent a sleep study in February 2010. He complained of night sweats, repeatedly kicking his legs while he sleeps, awakening with a bitter taste in his mouth, holding his breath while he sleeps, awakening choking, gasping or short of breath, loud snoring in the supine position, restless sleep, falling asleep at inappropriate times, somnolence, lack of energy, loss of libido, excessive daytime sleepiness, and restless legs. The impression was sleep apnea, OSA significantly worse during REM sleep, sleep related hypoxemia, hypersomnia/excessive daytime sleepiness, and obesity. 

A September 2013 private examination noted a long history of heavy snoring and cessation of respiration that dated back to his active duty as confirmed by the Veteran's wife. The examiner confirmed the diagnosis of sleep apnea as previously found in the sleep study.

Also in September 2013, the Veteran's fellow service member, J.K.G., wrote a letter that described how he and the Veteran were roommates for approximately one year in 1983. He went on to describe how he was often kept up by the Veteran's loud snoring, and often had to shake the Veteran to ensure he was still alive when he would stop breathing for 30 seconds to a minute. They were roommates again at some later point for about 18 months, and J.K.G. the Veteran continued to snore heavily and had frequent bouts of not breathing while sleeping.

In a September 2014 VA examination, the Veteran described a history of trouble sleeping since 1990. He also noted his wife noticed he stopped breathing at night about five to six years before the sleep study was performed. His symptoms were noted as sleep apnea, snoring, occasionally stopped breathing, nonrestorative sleep, and daytime sleepiness. He was diagnosed at that time with "other sleep disorder" because the examiner explained it was unclear as the private sleep study was not available to review. In a June 2015 addendum opinion, the examiner opined it was less likely as not that the sleep apnea was incurred in or caused by service. The examiner noted the Veteran's service treatment records did not indicate any issues with daytime sleepiness or other issues suggestive of sleep apnea. The examiner also noted that the sleep study indicated he snored loudly, but he just barely met the criteria for a diagnosis of sleep apnea. The examiner explained that snoring loudly did not equate to sleep apnea. The examiner further noted the Veteran's description of issues sleeping were not consistent with sleep apnea, such as difficulty falling asleep and waking up for other issues. The examiner also noted the issues reported by the Veteran's wife were several years after his active service. 

A VA examination was conducted in December 2013 to determine the etiology of his OSA. In response to an unartfully drafted question-which asked whether the Veteran's sleep apnea was at least likely as not incurred in or caused by "the complaints that occurred around 1996,"-the VA examiner indicated that he was unable to determine the etiology of the Veteran's OSA without resorting to speculation. As rationale, he reasoned that the former girlfriend's statement was dated after the Veteran's diagnosis of OSA, and that the Veteran's medical records were silent as to OSA until 2010. 

This examination report is inadequate. Here, the examiner provided a rationale that infers that there were no contemporaneous medical records to show an in-service incidence of OSA; however, some of the symptomatology the Veteran described is consistent with sleep apnea, as well as the symptomatology described by J.K.G that he witnessed while in service. An examination is deemed to be inadequate where the examiner relies on the absence of evidence of disability in the service treatment records, and does not account for competent lay testimony as to continuity of symptoms, to provide a negative opinion. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Therefore, upon remand, a new VA examination must be obtained, and the examiner must consider the lay statements of record regarding service incurrence and continuity of symptoms since service.


Radiculopathy of the Right Lower Extremity and Degenerative Joint Disease of the Thoraco-lumbar Spine

With regard to service-connected radiculopathy of the right lower extremity, the Veteran was last afforded a VA examination of the condition in June 2016. Subsequent clinical evidence and the November 2017 IHP indicate that his neurological condition may have worsened. In the IHP, the Veteran's representative noted the Veteran now experiences constant pain that was not noted in the last examination. Moreover, in a July 2016 VA treatment record, the Veteran complained of low back pain that radiated to his right thigh with some numbness and tingling. His medication was increased as a result. 

Relevant to the increased rating claim for degenerative joint disease of the thoraco-lumbar spine, these neurological complaints from the subsequent VA treatment records and November 2017 IHP of worsened neurological manifestations in association with the service-connected thoraco-lumbar spine disability thereby indicate a possible increase in severity of the Veteran's thoraco-lumbar spine disability since the September 2015 examination. Therefore, the Board finds that a remand is required in order to afford the Veteran a contemporaneous VA examination so as to determine his current level of impairment with regard to his degenerative joint disease of the thoraco-lumbar spine and radiculopathy of the right lower extremity.  See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995).

Accordingly, the case is REMANDED for the following action:

1. Obtain copies of records pertaining to any relevant treatment the Veteran has received at a VA facility since October 7, 2016, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the claims file.

2. Schedule the Veteran for an appropriate VA examination to address the etiology of his claimed erectile dysfunction. The entire claims file must be made available to the physician designated to examine the Veteran, and the report of examination should include discussion of the Veteran's documented history and assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail.

The physician should clearly identify whether the Veteran has a current diagnosis of erectile dysfunction. Then, the physician should answer the following questions: 

A) For any diagnosed erectile dysfunction, is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability is related to the Veteran's period of service? 

B) Notwithstanding the answer to the question above, is it at least as likely as not that erectile dysfunction is caused or aggravated beyond its natural progression by his service-connected PTSD, to include the medications taken to treat PTSD? In providing a response, the examiner should comment upon the evidence referenced by the Veteran suggesting that erectile dysfunction can be caused by certain medications for psychiatric conditions. 

The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed report.

3. Schedule the Veteran for a VA comprehensive orthopedic examination with an appropriate physician in order to determine the nature and severity of his cervical spine disability. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail.

The examiner should complete the following:

The VA examiner should conduct range-of-motion testing of the cervical spine disability, and provide commentary regarding symptoms, including painful motion, functional loss due to pain, excess fatigability, weakness, and additional disability during flare-ups. The examiner should provide the range of motion measurement indicating where pain began, if appropriate. Any additional loss of motion with repetitive movement must be noted. The examiner should inquire as to periods of flare-ups, and note the frequency and duration of any flare-ups. The examiner should assess the additional functional impairment during flare-ups in terms of the degree of additional range of motion loss. 

If it is not feasible to determine without resort to speculation, the examiner must provide an explanation for why this is so. The examiner should endeavor to provide an adequate estimation of the additional loss of function due to flare-up or repeated use.

Additionally, the examiner should specifically address whether there is any ankylosis, either favorable or unfavorable, of the Veteran's cervical spine. 

The examiner should also indicate whether any intervertebral disc syndrome of the cervical spine causes incapacitating episodes. Identify the number of incapacitating episodes involving physician-prescribed bed rest, if any, within a 12-month period.

The examiner must also identify any neurological abnormalities associated with the cervical spine disability. The examiner should also specifically contemplate the presence of radiculopathy. The nerves affected, or seemingly affected, by any radiculopathy should be identified and impairment of each described as mild, moderate, moderately severe, or severe in nature, and whether such represents symptomatology that more closely approximates incomplete or complete paralysis of the affected nerves. 

4. Schedule the Veteran for a VA audiometric examination to determine the current severity of his service-connected bilateral hearing loss.

5. Schedule a VA opinion or examination to determine the nature and etiology of the Veteran's obstructive sleep apnea. The electronic file and a copy of this Remand must be made available to the examiner. The examiner shall note in the examination report that the electronic file and the Remand have been reviewed. The need for a physical examination of the Veteran is left to the discretion of the clinician selected to write the opinion. In offering any assessments or opinions, the examiner must take into account all evidence of record, to include both the lay and medical evidence.

The examiner is asked to offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's sleep apnea is related to his military service. In reaching any conclusion, the examiner must consider and address the statements of the Veteran, his wife, and J.K.G. describing their observations that he first experienced symptoms of snoring and pausing for breath while sleeping, while in service. The examiner must also consider the lay statements that the Veteran has continued to experience such symptoms since separation from service. 

The examiner must provide complete rationale for the conclusions reached. 

6. Schedule the Veteran for a VA examination to evaluate the current severity of his service-connected degenerative joint disease of the thoraco-lumbar spine and radiculopathy of the right lower extremity. The claims file must be provided to and reviewed by the examiner. 

All indicated tests and studies should be conducted, including range of motion findings expressed in degrees and in relation to normal range of motion. The examiner should describe any pain, weakened movement, excess fatigability, and incoordination present.  To the extent possible, the examiner should express any functional loss in terms of additional degrees of limited motion of the Veteran's thoraco-lumbar spine, i.e., the extent of the Veteran's pain-free motion, and in terms of impediments to work related tasks.

The examiner should also state whether the lumbar spine disability has been productive of any incapacitating episodes, which are defined as periods of acute signs and symptoms that require bed rest prescribed by a physician or treatment by a physician, and if so, the frequency and duration of those episodes. 

The examiner must also identify and discuss the nature and extent of the right lower extremity radiculopathy. The examiner should opine, to the extent possible, as to whether such results in complete paralysis, or "mild," "moderate," or "severe" incomplete paralysis.

7. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence.  If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case.  An appropriate period of time should be allowed for response.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012).



______________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs