Citation Nr: 1817009 Decision Date: 03/19/18 Archive Date: 03/30/18 DOCKET NO. 14-23 721 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for a bilateral leg disability as due to an undiagnosed illness or a medically unexplained chronic multisymptom illness (MUCMI). 2. Entitlement to an initial rating in excess of 10 percent for a cervical spine disability. 3. Entitlement to an initial compensable rating for right shoulder impingement prior to December 15, 2016, and in excess of 20 percent thereafter. 4. Entitlement to an initial compensable rating for left shoulder impingement prior to December 15, 2016, and in excess of 20 percent thereafter. 5. Entitlement to an initial rating in excess of 10 percent for lumbar spondylosis prior to December 15, 2016, and in excess of 20 percent thereafter. 6. Entitlement to service connection for residuals of heat exhaustion as due to an undiagnosed illness or a MUCMI. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Jimerfield, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1989 to December 1996. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Board notes that, while the April 2014 Statement of the Case (SOC) addressed additional claims, the Veteran limited his appeal to those listed on the title page in a June 2014 VA Form 9. In March 2016, the Board reopened the Veteran's claim for service connection for a leg disability and remanded it for further development along with the other claims on appeal. Thereafter, in a March 2017 rating decision, the RO granted an increased rating of 20 percent for the Veteran's low back disability as of December 15, 2016 and ratings of 20 percent for his right and left shoulder disabilities also as of December 15, 2016. As the Veteran is presumed to be seeking the maximum available benefit for a disability, the entirety of these claims remain before the Board. See AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Murphy v. Shinseki, 26 Vet. App. 510, 514 (2014). The decision below addresses the issues of entitlement to service connection for a bilateral leg disability, a higher initial rating for a cervical spine disability, and initial compensable ratings for bilateral shoulder disabilities. The Veteran's shoulder disability rating claims are also addressed in the remand section following the decision along with his claims for a higher initial low back rating and service connection for residuals of heat exhaustion. FINDINGS OF FACT 1. The Veteran had active service in the Southwest Asia Theater of Operations during the Persian Gulf War. 2. The Veteran has bilateral leg muscle pain that became manifest during active military service in the southwest Asia Theater of Operations and cannot be attributed to any known diagnosis. 3. The Veteran's cervical spine disability has not manifested by cervical spine forward flexion of 30 degrees or less; combined cervical spine range of motion of 170 degrees or less; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; or incapacitating episodes prescribed by a physician. 4. For the entire period on appeal, the Veteran's right shoulder impingement has been manifested by painful motion. 5. For the entire period on appeal, the Veteran's left shoulder impingement has been manifested by painful motion. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral leg muscle pain have been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2017). 2. The criteria for an initial rating in excess of 10 percent for cervical spondylosis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237 (2017). 3. The criteria for at least a 20 percent initial rating for right shoulder impingement have been met from September 9, 2010 to December 14, 2016. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5201 (2017). 4. The criteria for at least a 20 percent initial rating for left shoulder impingement have been met from September 9, 2010 to December 14, 2016. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5201 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). I. Service Connection Claim Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, 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)). Alternatively, a veteran who served in the Southwest Asia theater during the Persian Gulf War and exhibits objective indications or symptoms of a qualifying undiagnosed illness or a MUCMI, so long as the objective symptoms occurred either during service in the Southwest Asia theater or manifested to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117; 38 C.F.R. § 3.317; Extension of the Presumptive Period for Compensation for Gulf War Veterans, 81 Fed. Reg. 71382 (Oct. 17, 2016). A MUCMI is one defined by a cluster of signs or symptoms and specifically includes functional gastrointestinal disorders. Facts and Analysis The Veteran contends that he has a leg disability due to his military service. In this regard, he reported on a September 2010 claim form that he began experiencing leg cramps in April 1996. In a December 2010 statement, he reported that his leg cramps occur daily at night and last for 15 to 30 minutes and that they were noted during a 2010 sleep study. The Veteran's wife also submitted a statement in December 2010. She reported that he has experienced leg cramps at bedtime since his military service and that he winces from pain and shifts his legs to relieve tension. The Veteran's service personnel records show that he received the Southwest Asia Service Medal and Kuwait Liberation Medal. His service treatment records (STRs) contain reports of medical history from April and October 1996. The Veteran reported experiencing leg cramps on both of these medical histories and noted on the October 1996 history that he experiences leg cramps at night. He was afforded Gulf War General Medical Examination in regard to this claim in July 2013. The Veteran reported experiencing leg cramping at night ten times per month or with extended driving that can last up to 30 minutes. He also reported that he experiencing sharp pain 9 out of 10 in severity during these incidents. The examiner noted that the Veteran reported a diagnosis of restless leg syndrome in 2010 and opined that as this is a diagnosed disorder with a clear and specific etiology and, thus, it is not an undiagnosed illness or a MUCMI. Thereafter, the Veteran was afforded another VA examination in regard to this claim in April 2014. The examiner noted that the Veteran reported that a private sleep study showed he has restless leg syndrome, but the examiner stated that a sleep study is not a proper test to diagnose such condition. The examiner found that the Veteran's symptoms do not represent true muscle cramps. He also found that these symptoms do not originate in the Veteran's back. He concluded that the Veteran experiences fleeting, recurrent bilateral lower extremity pain of an unclear etiology. Pursuant to the March 2016 remand, the Veteran was again examined by VA in regard to this claim in June 2016. The examiner did not offer a diagnosis for the Veteran's chronic, intermittent bilateral leg pain. Subsequently, the April 2014 VA examiner again examined the Veteran in July 2016. He stated that the Veteran does not have leg cramps or restless leg syndrome. He also stated that the Veteran does not have an undiagnosed illness or a MUCMI. The examiner provided an addendum opinion in September 2016 in which he stated that the Veteran does not have any condition relating to leg cramps or restless leg syndrome. The Board finds that the intermittent, chronic leg pain experienced by the Veteran is related to his service in Southwest Asia. In this regard, the Veteran's service personnel records reflect that he served in Southwest Asia during the Persian Gulf War. The Veteran reported experiencing such leg pain during service and continuing after his discharge and the Board finds no reason to doubt the veracity of his statements regarding the onset of such pain. In addition, the Veteran's wife credibly reported that he began exhibiting signs of experiencing leg pain regularly consistent with his description of such symptoms after his military service. Furthermore, while multiple VA examinations and opinions have been obtained, the examiners have failed to provide a diagnosis that would account for the Veteran's intermittent leg pain and tension. In this regard, while the July 2013 examiner found that the Veteran's condition was caused by restless leg syndrome, he based this diagnosis on the Veteran's report that he was diagnosed with such condition during a sleep study. However, the April 2014 VA examiner explained that the Veteran's condition is not restless leg syndrome. He further concluded that the Veteran's condition was incurred during service and was a condition of unclear etiology. In making all determinations, the Board must consider the lay assertions of record. A layperson is competent to report the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). In this case, the Veteran has consistently reported experiencing chronic, intermittent leg pain and he is competent to describe such symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In addition, the Veteran's wife has reported witnessing the Veteran experience observable indications of experiencing such symptoms. The Board finds these reports to be credible. After resolving reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for an undiagnosed leg disability manifested by chronic, intermittent leg pain. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.317. Accordingly, entitlement to service connection for leg muscle pain is warranted. II. Initial Rating Claims General Rating Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Furthermore, the intent of the rating schedule is to recognize painful motion with joint or particular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis context, the Board should address its applicability. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Cervical Spondylosis Cervical spine disabilities are evaluated under Diagnostic Codes 5235 to 5243 using the general rating formula unless evaluating intervertebral disc syndrome based on incapacitating episodes. Under the General Rating Formula for Diseases and Injuries of the Spine, the criteria for a rating of 10 percent are forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. The criteria for a rating of 20 percent are forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The criteria for a 30 percent rating are forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. The criterion for a 40 percent rating is unfavorable ankylosis of the entire cervical spine. The criteria for a 100 percent rating are unfavorable ankylosis of the entire spine. Under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, incapacitating episodes having a total duration of at least one week, but less than two weeks during 12 months are rated at 10 percent. Incapacitating episodes having a total duration of at least two weeks, but less than four weeks during 12 months are rated at 20 percent. Incapacitating episodes having a total duration of at least four weeks, but less than six weeks during 12 months are rated at 40 percent. Incapacitating episodes having a total duration of at least six weeks during 12 months are rated at 60 percent. An incapacitating episode is a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. Note 1, following the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran contends that his cervical spondylosis is more than 10 percent disabling. An undated private treatment record associated with the file in January 2011 reflects that a private treatment provider reported that the Veteran's cervical spine exhibits pain on all motions and estimated that he experiences a 25 to 30 percent reduction in his range of motion. He was afforded a VA examination in regard to his cervical spine in April 2011. The examiner diagnosed the Veteran with cervical spondylosis, but noted no medical history of flare-ups. He reported that the Veteran's cervical spine did not exhibit any reduced range of motion or objective pain on active motion. The examiner also found that there was no additional limitation of movement on three repetitions. The examiner also conducted neurologic testing, but did not report any abnormal findings. The examiner found that the Veteran experienced moderate, constant pain without radiation and limitations in reaching, lifting, carrying, and prolonged typing due to his cervical spine disability. Pursuant to the March 2016 Board remand, the Veteran was again afforded an examination of his cervical spine in June 2016. The examiner noted that the Veteran has degenerative disc disease of the cervical spine. The Veteran reported chronic pain without radiation. He stated the pain was 6 out of 10 in severity and denied experiencing flare-ups. The examiner found that the Veteran had forward flexion to 45 degrees with total range of motion of 245 degrees and without evidence of pain on motion. The examiner also reported that there was no additional loss of function or range of motion after three repetitions. He reported that there was no evidence of pain with weight-bearing but there was pain with palpation of the joint. He also denied the presence of guarding, ankylosis, and IVDS. After performing relevant testing, the examiner found no abnormal neurologic findings. The Board finds that an initial rating in excess of 10 percent for the Veteran's cervical spine disability is not warranted. In this regard, the evidence of record does not show that he has exhibited forward flexion of 30 degrees or less or a combined cervical spine range of motion of 170 degrees or less. Furthermore, while an undated private treatment record contains an estimate that the Veteran's range of motion is reduced by as much as 30 percent, such a reduction in the degrees of range of motion would not result in findings indicative of a 20 percent disabling condition. There is also no evidence of muscle spasms or guarding, ankylosis, or incapacitating episodes of IVDS in regard to the Veteran's cervical spine disability. While the Veteran has consistently reported experiencing pain and the examiners found some functional impairment due to this disability, such impairment is contemplated by the 10 percent rating already assigned for this disability. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5237; DeLuca, 8 Vet. App. at 202. In addition, the examiners did not find objective evidence of pain on movement such that the Veteran's functional range of motion is indicative of a rating in excess of 10 percent. The Veteran has also consistently denied experiencing flare-ups of his cervical spine disability. Furthermore, the examiners performed relevant testing, but did not find evidence of related neurologic abnormalities. In sum, the preponderance of the evidence is against the claim for an initial rating in excess of 10 percent for a cervical spine disability, there is no doubt to be resolved, and a higher rating is not warranted. Bilateral Shoulder Impingement The Veteran's right and left shoulder disabilities are rated under DC 5201 for limitation of motion of the arm. DC 5201 provides that limitation of motion of the major and minor arm at shoulder level warrant a 20 percent evaluation. Limitation of motion of the arm midway between side and shoulder level warrants a 20 percent evaluation (minor) and 30 percent evaluation (major). Limitation of motion of the arm to 25 degrees from side warrants a 30 percent evaluation (minor) and 40 percent evaluation (major). 38 C.F.R. § 4.71a, DC 5201. The Veteran was afforded a VA examination in regard to his shoulders in April 2011. The Veteran reported experiencing instability, pain, stiffness, and weakness in regard to his bilateral shoulders. The examiner found that he had tender bilateral subacromial spaces. The examiner diagnosed the Veteran with bilateral shoulder impingement and found that his shoulder disabilities would result in significant functional impairment due to pain and problems lifting, carrying, and reaching. The Board finds that at least an initial 20 percent rating is warranted for the Veteran's right and left shoulder disabilities from September 9, 2010 to December 14, 2016. In this regard, the Veteran has reported experiencing painful motion in his bilateral shoulders throughout the period on appeal and the April 2011 examiner noted functional loss due to these disabilities. These findings support a grant of at least a 20 percent rating under 38 C.F.R. § 4.71a, DC 5201, for the initial rating period on appeal as a 20 percent rating is the minimum compensable rating for the shoulder joint based on limitation of motion. See Sowers v. McDonald, 27 Vet. App. 472, 481-82 (2016) (noting that while there is a 10 percent rating available for the shoulder across all DCs, a 20 percent rating is the minimum compensable rating for the shoulder for limitation of motion). Therefore, the shoulder claims on appeal become entitlement to an initial rating in excess of 20 percent for right shoulder impingement and left shoulder impingement. The Veteran is not prejudiced by this action as it is a grant of benefits without any denial of greater benefits. This issue will also be addressed further in the remand section below. ORDER Service connection for a bilateral leg muscle pain is granted. Entitlement to an initial rating in excess of 10 percent for cervical spondylosis is denied. An initial rating of 20 percent for right shoulder impingement is granted from September 9, 2010 to December 14, 2016, subject to the laws and regulations governing the payment of monetary awards. An initial rating of 20 percent for left shoulder impingement is granted from September 9, 2010 to December 14, 2016, subject to the laws and regulations governing the payment of monetary awards. (CONTINUED ON NEXT PAGE) REMAND As discussed above, pursuant to the Board's March 2016 remand the Veteran was afforded an examination to ascertain the current severity of his right and left shoulder disabilities in December 2016. However, the December 2016 examination did not comply with the United States Court of Appeals for Veterans Claims (Court) holding that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). In particular, the examiner did not provide the degrees at which pain on motion began or record the Veteran's ranges of motion on passive motion and on weight-bearing and nonweight-bearing. Therefore, remand is required to obtain such findings. In addition, the Board finds that the remand is required to afford the Veteran another examination in regard to the severity of his back disability. In this regard, the December 2016 examiner noted that the Veteran had pain on motion but did not record the degree at which such pain began. Id. In addition, the examiner reported that the Veteran does not experience flare-ups, but later seems to indicate that he does experience flare-ups of his back disability and stated that an estimation of range of motion during flare-ups would be purely speculative. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative); see also Monzingo v. Shinseki, 26 Vet. App. 97, 107 ("If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely."). Furthermore, the Board finds that additional development is required in regard to the Veteran's claim of service connection for residuals of heat exhaustion. In this regard, the Board remanded this claim in March 2016 to obtain an examination of the Veteran and findings as to whether he has a diagnosed condition related to his in-service heat exhaustion, he has an undiagnosed condition, or whether he experiences symptoms of a MUCMI. However, while a VA examiner concluded in June 2016 that the Veteran does not have a MUCMI, he did not offer a rationale for this conclusion. In addition, a VA neurologist examined the Veteran in regard to this condition in July 2016. The Veteran reported that he has difficulty with hot weather and gets lightheaded. The neurologist concluded that the Veteran does not have a diagnosed disability related to his in-service heat exhaustion or symptoms that are attributable to an undiagnosed illness. However, the neurologist also did not offer a rationale for his conclusions. Therefore, remand is required to obtain another examination in regard to the presence and etiology of a condition residual to the Veteran's in-service heat exhaustion. Accordingly, these claims are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. 2. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his service-connected right and left shoulder disabilities. The record, to include a complete copy of this remand, must be made available to the examiner. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail. (A) The examiner should record the results of range of motion testing for pain on both active and passive motion, on weight-bearing and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case he or she should clearly explain why that is so. (B) The examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If there is clinical evidence of pain on motion, or any of the other above-noted symptoms, the examiner should indicate the degree of range of motion at which such pain begins, as well as whether such results in any loss of range of motion. (C) The examiner is also asked to express an opinion as to whether pain, weakness, fatigability, or incoordination cause additional functional impairment after repeated use over time or during flare-ups. The examiner should assess additional functional impairment in terms of the degree of additional range of motion loss, if possible. If the Veteran endorses experiencing flare-ups of his right shoulder disability and/or left shoulder disability, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. All opinions expressed should be accompanied by supporting rationale. 3. Afford the Veteran an appropriate VA examination to determine the current nature and severity of his service-connected lumbar spondylosis. All indicated tests and studies should be undertaken. The record, including a complete copy of this remand, must be made available for review in connection with the examination. If possible, such examination should be conducted during a flare-up. (A) The examiner should identify the current nature and severity of all manifestations of the Veteran's back disability. (B) The examiner should record the range of motion of the lumbar spine observed on clinical evaluation in terms of degrees. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, as well as whether such pain on movement results in any loss of range of motion. The examiner should record the results of range of motion testing for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case he or she should clearly explain why that so. (C) It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use. In this regard, the examiner should indicate whether, and to what extent, the Veteran's range of motion is additionally limited during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. (D) If the Veteran endorses experiencing flare-ups of his back disability, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. (E) The examiner is further requested to indicate whether the Veteran's back disability results in any objective neurologic impairments and, if so, the nature and severity of such neurologic impairment. (F) The examiner should also state whether the Veteran has intervertebral disc syndrome and, if so, the total duration of any incapacitating episodes over the past 12 months. The examiner is advised that an "incapacitating episode" is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. All opinions expressed should be accompanied by supporting rationale. 4. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his residuals of heat exhaustion, to include as due to undiagnosed illness. All necessary testing should be conducted. The claims file and a copy of the Remand must be reviewed in conjunction with such the examination, and the examiner must indicate that such review occurred. After examining the Veteran and reviewing the record, the examiner should address the following inquiries: (A) The examiner should note and detail all reported symptoms referable to the Veteran's heat exhaustion. The examiner should conduct a comprehensive examination and provide details about the onset frequency, duration, and severity of fatigue and any related symptoms. (B) The examiner should specifically state whether the Veteran's heat exhaustion and any related symptoms are attributable to a known clinical diagnosis. (C) If any symptoms are not attributable to a known clinical diagnosis, the examiner should indicate whether the Veteran has objective indications of a chronic disability resulting from an undiagnosed illness, as established by history, physical examination, and laboratory tests, that has either (1) existed for 6 months or more, or (2) exhibited intermittent episodes of improvement and worsening over a 6-month period. (D) The examiner should offer an opinion as to whether it is at least as likely as not that the Veteran's heat exhaustion and related symptoms represent a "medically unexplained chronic multisymptom illness." Such is defined as a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. (E) For each diagnosed disorder, the examiner should render an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such disorder is related to the Veteran's military service, to include his service in the Southwest Asia. In rendering each requested opinion, the examiner should consider and discuss all relevant evidence, to include medical documents, and all relevant lay statements of record. All opinions expressed should be accompanied by supporting rationale. 5. After completing the above actions, readjudicated the claims remaining of appeal, including the recharacterized issues of entitlement to initial ratings in excess of 20 percent for right and left shoulder impingement, based on the entirety of the evidence. If the benefits sought are not granted in full, 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. ______________________________________________ A.J. Spector Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs