Citation Nr: 18157906 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 18-46 332 DATE: December 13, 2018 ORDER New and material evidence sufficient to reopen the claim of service connection for a left ankle disability has been received, and to that extent only, the claim is granted. Entitlement to service connection for a left ankle disability is denied. REMANDED Entitlement to an increased initial evaluation in excess of 10 percent for a lumbar back disability is remanded. Entitlement to service connection for left lower extremity radiculopathy, to include as secondary to service-connected disability, is remanded. Entitlement to service connection for right lower extremity radiculopathy, to include as secondary to service-connected disability, is remanded. FINDINGS OF FACT 1. In May 2006, the RO issued a rating decision denying entitlement to service connection for a left ankle disability. The rating decision was not appealed and new and material evidence was not received during the one-year appeal period following that decision, and thus, that decision is final. 2. Evidence received since the May 2006 rating decision regarding the Veteran’s claim for service connection for the left ankle disability is not cumulative or redundant of the evidence previously of record, and raises a reasonable possibility of substantiating the Veteran’s claim of service connection for the left ankle disability. 3. The weight of evidence is against a finding that the Veteran has had a left ankle disability at any time during the period on appeal. CONCLUSIONS OF LAW 1. The May 2006 rating decision is final. 38 U.S.C. §§ 7104, 7105 (2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2005). 2. New and material evidence sufficient to reopen the claim of service connection for a left ankle disability has been received since May 2006 and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The criteria for service connection for a left ankle disability has not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1983 to May 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239–40 (1995). When a Veteran files a claim for an increased rating, he or she is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). Here, both VA and private medical records indicate the Veteran has been employed full time, and he has not asserted that his service-connected disabilities keep him from gaining and maintaining suitable employment. There is no further lay or medical evidence the Veteran is housebound in fact, requires aid and attendance, or that his disabilities result in loss of use of a limb or blindness. 38 U.S.C. §§ 1114(s), (l), (k); 38 C.F.R. § 3.350(a), (b), (i). The Board finds that consideration of TDIU and SMC are not inferred by the record, and as such will not be discussed. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct.3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board….to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). In sum, the Board is satisfied that the originating agency properly processed the Veteran’s claim after providing the required notice and that any procedural errors in the development and consideration of the claims by the originating agency were insignificant and non-prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Petition to Reopen In February 2006, VA received the Veteran’s original claim for entitlement to service connection for, in pertinent part, a left ankle strain. The claim was originally denied in May 2006 and the Veteran was notified on May 11, 2006 because the evidence did not show a current disability or a nexus to service. The RO reviewed the Veteran’s available service treatment records (STRs), a VA examination provided in February 2006, and his statements regarding the disorders. The Veteran did not file a notice of disagreement (NOD) or submit new and material evidence within the one-year appeal period following that decision. He also did not assert there was clear and unmistakable error in the rating decision. Therefore, the decision became final. 38 U.S.C. § 7105(c) (2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2005). The Veteran sought to reopen this claim in June 2016. The RO reviewed the Veteran’s available service treatment records (STRs), VA treatment records, private treatment records, and his statements regarding his left ankle during and after service. The RO reopened the claim but denied the claim for the left ankle disability in April 2017. The Veteran filed a notice of disagreement (NOD) in March 2018. VA issued a Statement of the Case (SOC) in August 2018. The Veteran perfected an appeal to the Board in November 2018. The Board is required to address new and material claims in the first instance. The Board has the jurisdiction to address a new and material issue and to reach the underlying de novo claims. If the Board determines that new and material evidence has not been received, the adjudication of the particular claim ends, and further analysis is neither required nor permitted. Any decision that the AOJ may have made with regard to a new and material claim is irrelevant. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Thus, the Board will adjudicate this new and material issue in the first instance. New evidence is defined as existing evidence not previously submitted to VA since the last final denial, and material evidence is defined as 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) (2017). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Only evidence presented since the last, final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 284 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). The evidence of record in May 2006 consisted of service records, including personnel records and separation examination reports, and lay statements from the Veteran. The Veteran was also provided a VA examination in February 2006. The evidence of record at that time did not establish a current diagnosis of a left ankle disability. Since the May 2006 rating decision, the Veteran’s file has additional VA medical records and private medical treatment records through 2017, to include a VA examination provided in April 2017, that have been attached to the claims file. Furthermore, the Veteran’s lay statements in the claims file have provided additional insight and facts into the Veteran’s claims. This evidence is not cumulative or redundant of the evidence previously of record, and assuming its credibility for the purpose of the threshold question of whether the claim can be reopened raises a reasonable possibility of substantiating the Veteran’s claim of service connection for a left ankle disability. As new and material evidence has been received, reopening of the previously denied claims of entitlement to service connection for a left ankle disability is warranted. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). To that extent only, the claim is granted. Service Connection for Left Ankle Disability Legal Criteria for Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Proof of a current disability is a threshold to establishing service-connection for any claimed disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). To be a present as a current disability, there must be evidence of the condition at some time during the appeals period. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2017). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Evidence and Analysis – Left Ankle Disability The Veteran contends he has a left ankle disability, among other claims, resulting from injuries received during his active duty service. The Veteran has reported in lay statements and to medical examiners his account of those incidents and his subsequent medical treatment. The Veteran’s service treatment records show he was treated in 1999 while in active service for a left ankle sprain. He also reported that he twisted his ankle on multiple occasions but did not seek medical attention. The Veteran received his first VA examination for his left ankle in February 2006. The examiner diagnosed a left ankle strain based on the Veteran’s reported history noted above. During the examination, the Veteran reported the ankle feels like it is unstable, intermittently once per month. The VA examiner, a physician, noted no edema, effusion, weakness, tenderness, redness, heat, abnormal movement, guarding movement, or subluxation. No ankylosis was noted. Range of motion for both ankles were 20 degrees in dorsiflexion with 20 being the normal limit, and 45 degrees of plantar flexion, with 45 being the normal limit. X-rays taken the day of the examination were considered normal. The examiner determined there were no permanent residuals or presumptive disability shown by the examination or the service medical records, and indicated there was no current objective pathology specifically related to the left ankle. The Veteran received another VA examination in April 2017. The examiner noted localized tenderness over the lateral talar dome of the left ankle area. Range of motion measurements for dorsiflexion and plantar flexion were again at normal limits for both ankles. No pain was noted on the examination. The examiner determined that any pain, weakness, fatigability, or incoordination did not limit any functional ability. Again, there was no edema, effusion, weakness, tenderness, redness, heat, abnormal movement, guarding movement, or subluxation. No ankylosis was noted. The examiner determined there was insufficient current objective pathology for the left ankle, and thus the Veteran does not have a current diagnosis associated with any condition of his left ankle claim. The Board finds both the February 2006 and April 2017 examinations to be highly probative as they are sound and thorough, and had sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting medical literature and clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, there is no diagnosis of a current disability of a left ankle condition by any VA medical examiner. Thus, the Veteran’s claim does not meet the first prong of service connection, the requirement of a current disability. See Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Upon review of the evidence of record, the Board finds that the weight of the competent and probative evidence does not demonstrate that entitlement to service connection is warranted for the Veteran’s claimed left ankle disability. Here, no examiner or medical professional has made a diagnosis of a current disability related to the Veteran’s claimed left ankle disability. The service treatment records note the 1999 incident that gave rise to treatment for a temporary ankle sprain, but the service treatment records immediately after the incident did not document any residual injury or disability. VA examinations at service retirement in February 2006 and again in April 2017 found no current disability of the left ankle. The Board notes the statements from the Veteran regarding his left ankle disability. Generally, lay evidence is probative with regard to a disease with “unique and readily identifiable features” that is “capable of lay observation.” See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). Lay evidence on its own can be sufficient evidence of a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Additionally, a lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. Id. A layperson cannot provide evidence as to more complex medical questions and, specifically, cannot provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). See 38 C.F.R. § 3.159(a)(2). To the extent that the Veteran can observe symptoms such as pain in his ankle, he is competent to comment on and endorse these symptoms. However, the determination of the etiology of a left ankle condition is a complex medical determination beyond his competence. See Layno v. Brown, 6 Vet. App. 465 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, his assertions to that effect are of no probative value. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, there is no diagnosis of a current disability of a left ankle disability by any VA medical examiner. Thus, the Veteran’s claim fails the first prong of service connection, the requirement of a current disability. See Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Because the Veteran has no in-service or related disease or injury that occurred in service or within one year after leaving active service that is not already accounted for in his other service-connected disabilities, the Veteran fails the second prong of the test for entitlement to direct service connection. See id. The Board has considered the recent holding in Saunders v. Wilkie in which service connection was deemed possible in the absence of a diagnosis when such factors as pain are shown to limit functional ability. Saunders v. Wilkie, 886 F.3d 1356, 1364 (Fed. Cir. 2018) (“pain alone can serve as a functional impairment and therefore qualify as a disability”). That Federal Circuit decision qualified that holding, however: “[w]e do not hold that a veteran could demonstrate service connection simply by asserting subjective pain…. To establish the presence of a disability, the veteran will need to show that [his] pain reaches the level of functional impairment of earning capacity.” Id. at 1365. In this case, however, the VA examination conducted during the pendency of this appeal in April 2017 showed that while some localized tenderness over the lateral talar dome of the left ankle area was noted, that such tenderness was not described by either the Veteran or the VA examiner as pain. The examiner specifically wrote that no pain was noted on the examination. The examiner determined that any pain, weakness, fatigability, or incoordination did not limit any functional ability. Again, there was no edema, effusion, weakness, tenderness, redness, heat, abnormal movement, guarding movement, or subluxation. No ankylosis was noted. The examiner determined there was insufficient current objective pathology for the left ankle, and thus the Veteran does not have a current diagnosis associated with any condition of his left ankle claim. Based on the above, the Board finds that the weight of the competent and credible evidence demonstrates that the Veteran’s claimed left ankle condition was not incurred in service. For these reasons, the Board finds that a preponderance of the evidence is against the claim of service connection for a left ankle condition, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to an increased initial evaluation in excess of 10 percent for a lumbar back disability is remanded. The Veteran is claiming entitlement to an increased initial evaluation for his service-connected lumbar back disability, currently evaluated at 10 percent from June 6, 2016. The Veteran has asserted that his lumbar back disability is worse than rated, and that a VA examination of April 2017 was performed incorrectly because during the measurements of range of motion, the Veteran supported himself with his arms, which he asserts resulted in inaccurate measurements. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). Additionally, the Court has addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. 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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA must provide an examination that is adequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). In addition, the Board finds that the April 2017 examination was inadequate because it did not sufficiently consider functional loss caused by pain or other factors that could occur during flare-ups. The Board notes that the inadequate April 2017 VA examination must therefore be reaccomplished to provide an accurate sense of the present level of disability for the lumbar back disability. 2. Entitlement to service connection for left lower extremity radiculopathy, to include as secondary to service-connected disability, is remanded. 3. Entitlement to service connection for right lower extremity radiculopathy, to include as secondary to service-connected disability, is remanded. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or aggravated by a service-connected disability. See 38 C.F.R. § 3.310 (2017); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). VA provided an examination for the Veteran’s claimed radiculopathy in conjunction with the flawed April 2017 VA examination for the lumbar back increased rating claim as discussed above. The Board finds the opinions provided for possible service connection for the radiculopathy to be incomplete in that a complete and formal opinion for direct service connection and secondary service connection is not provided for each lower extremity. Additionally, the examiner providing the opinion made statements that were vague, confusing, and therefore inconclusive. It is well established that medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006). The use of the words “possible,” “may,” or “can be” make a doctor’s opinion speculative in nature. See Bostain v. West, 11 Vet. App. 124, 127–28 (1998) (quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993)) (medical opinion expressed in terms of “may” also implies “may or may not” and is too speculative to establish medical nexus). See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (doctor’s statement framed in terms such as “could have been” is not probative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (“may or may not” language by physician is too speculative). In addition, because the radiculopathy service connection claims are related with the service-connected lumbar back increased rating claim being remanded, they are inextricably intertwined, and must therefore be remanded as well. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matter is REMANDED for the following action: 1. Obtain any pertinent outstanding VA treatment records and associate them with claims file. Contact the Veteran and request that he identify any pertinent private treatment records not already identified and obtained and, with the appropriate authorization, attempt to obtain those records and associate them with the claims file. All actions to obtain the records should be documented. If the records cannot be located or do not exist, the Veteran should be notified and given opportunity to provide them. 2. Schedule the Veteran for the appropriate VA examination by a VA medical professional with the necessary expertise to determine the nature and severity of the Veteran’s lumbar back disability, and the nature and etiology of the lower extremity radiculopathy, to include all orthopedic and neurological manifestations. The electronic claims file, to include the Veteran’s service treatment records, lay statements and testimony, and treatment records, should be reviewed by the examiner. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the lumbar spine disability to include any right and/or left lower extremity radiculopathy and discuss the effect of the Veteran’s orthopedic and neurologic symptoms on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. After reviewing the claims file and examining the Veteran, the examiner should opine to the following with regard to the claimed radiculopathy for each lower extremity (in other words, separate opinions for each extremity are required for direct and secondary service connection): a) Whether it is at least as likely as not (probability of fifty percent or greater) that the Veteran’s right and/or left lower extremity radiculopathy is related to his active duty service, or are otherwise related to any in-service disease, event, or injury? b) If not, is it at least as likely as not (probability of fifty percent or greater) that the right and/or left lower extremity radiculopathy was caused by the Veteran’s service-connected lumbar back disability or any other service-connected disability? c) If the lumbar back disability did not cause the right and/or left lower extremity radiculopathy, is it at least as likely as not (probability of fifty percent or greater) that right and/or left lower extremity radiculopathy was aggravated (an increase in severity) by the lumbar back disability or any other service-connected disability? d) If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the right and/or left lower extremity radiculopathy by the service connected disability. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports of symptomatology, a reason for doing so must be provided. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. 4. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period 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. §§ 5109B, 7112 (2012). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Setter, Associate Counsel