Citation Nr: 1817170 Decision Date: 03/19/18 Archive Date: 03/30/18 DOCKET NO. 10-12 886 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for a lumbar spine disability, prior to January 9, 2013. 2. Entitlement to a rating in excess of 40 percent for a lumbar spine disability, from January 9, 2013. 3. Entitlement to total disability based on individual unemployability (TDIU) prior to August 3, 2009. REPRESENTATION Veteran represented by: North Carolina Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel INTRODUCTION The Veteran served in the U.S. Air Force from September 1959 to September 1980. These matters come before the Board of Veterans' Appeals (Board) from a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Jurisdiction currently resides with the VA RO in Winston-Salem, North Carolina. A December 2014 Board decision granted an increased rating of 40 percent, effective January 9, 2013, for the lumbar spine disability, but denied ratings in excess of 20 percent prior to January 9, 2013 and in excess of 40 percent thereafter. A November 2015 order of the United States Court of Appeals for Veterans Claims (CAVC) implemented a Joint Motion for Partial Remand(JMR), vacating and remanding that portion of the Board decision that denied increased ratings in excess of 20 percent prior to January 9, 2013 and 40 percent thereafter. In December 2014, the Board also remanded the issue of entitlement to TDIU prior to August 3, 2009 for adjudication. In September 2016, the Board remanded the Veteran's lumbar spine and TDIU claims for further development, to include a VA examination and a request for records. In August 2017, the Board remanded the Veteran's claims again to request releases for private medical records which were mentioned in a 2017 VA examination. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in March 2012. A transcript of that hearing is contained in the electronic record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2014). The issue(s) of entitlement to TDIU prior to August 3, 2009 is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Prior to January 9, 2013, the Veteran's lumbar spine disability manifested in forward flexion limited to, at worst, 50 degrees. There was no objective evidence of favorable or unfavorable ankylosis. The Veteran did not have intervertebral disc syndrome with incapacitating episodes (acute symptoms requiring bed rest prescribed by a physician and treatment by a physician). The Veteran is separately rated for left lower extremity radiculopathy; the preponderance of the medical evidence is against a finding of additional associated neurological disorders. 2. From January 9, 2013, the Veteran's lumbar spine disability manifested in forward flexion to, at worst, 30 degrees. There was no objective evidence of favorable or unfavorable ankylosis. The Veteran did not have intervertebral disc syndrome with incapacitating episodes. The Veteran is separately rated for left lower extremity radiculopathy; the preponderance of the medical evidence is against a finding of additional associated neurological disorders. CONCLUSIONS OF LAW 1. Prior to January 9, 2013 , the criteria for an initial evaluation in excess of 20 percent for a lumbar spine disability have not been met. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. §§ 4.40; 4.71a, Diagnostic Code 5242, General Rating Formula for Diseases and Injuries of the Spine (2017). 2. From January 9, 2013, the criteria for an evaluation in excess of 40 percent for a lumbar spine disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.40; 4.71a, Diagnostic Code 5242, General Rating Formula for Diseases and Injuries of the Spine. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to notify was satisfied by letters provided in August 2006 and October 2012. See 38 U.S.C. § 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board additionally notes that the Veteran served as a VA representative for six years, and therefore he is considered to have actual knowledge of the information necessary to substantiate his VA claims. VA's duty to assist includes obtaining relevant records. The electronic file contains the Veteran's VA treatment records, service treatment records, lay statements, and VA examination reports. The record also contains limited private treatment records. On several occasions, VA attempted to obtain private medical records and releases for private medical records. The Veteran did provide a release for private medical records from his family/orthopedic physician Dr. M.D. in December 2012. The AOJ (agency of original jurisdiction) sent two letters, a fax, and called the office of Dr. M.D., but were unable to obtain records. The Veteran did not provide subsequent releases for Dr. M.D., Dr. S., chiropractic records, or other private treatment records relevant to his lumbar spine disability claim when requested in 2016 and 2017. Given the attempts of record to obtain private treatment records, and releases for private records from the Veteran, the Board finds that additional remands for these records would be fruitless. VA examinations related to the Veteran's back claim were provided in 2004, 2008, 2009, 2012, 2013, and 2017. The Board notes that the 2015 JMR determined that the Board previously erred when it relied upon two inadequate VA medical examination reports (2012 and 2013) that failed to comply with CAVC's holdings in Mitchell v. Shinseki, 25 Vet .App. 32, 43-44 (2011), and DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). To that extent, the claims were remanded for an updated examination in compliance with Mitchell. The 2017 examination included the Veteran's description of his flare-ups and causes of his flare-ups, as well as his description of functional impairment due to his low back disability. Regarding Mitchell and Deluca, specifically, the examiner must "express an opinion on whether pain could significantly limit functional ability during flare-ups or [on repetitive use] over a period of time," and the examiner's determination in that regard "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Id. at 206 (internal quotation marks and alteration omitted). CAVC reinforced this principle in Mitchell, where it held that "when pain is associated with movement...the medical examiner must be asked to express an opinion on whether pain could significantly limit functional ability," and such determinations should "if feasible, be 'portray[ed]'...in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Mitchell v. Shinseki, 25 Vet. App. at 44. Here, the 2017 examiner found that it was not feasible to portray any additional loss of motion of functional impairment in terms of a degree of additional range of motion loss. The examiner noted he would be resorting to mere speculation to provide such information as he had not witnessed a flare-up or examined the Veteran after repetitive use over time. The examiner also noted that the medical examination was neither medically consistent nor inconsistent with the Veteran's reported subjective description of his flare-ups and functional impact, further supporting his indication that it was not feasible to provide an additional degree of loss of motion based on the examination, interview, and review of the record. The Board notes that the examiner was further limited in providing a medical opinion regarding additional limitation during flare-ups/over repetitive use by the fact that the record does not contain any of the Veteran's private treatment records for his lumbar spine disability, which may have included medical treatment during a flare-up. VA treatment records do not contain any complaints or treatment for the Veteran during a lumbar spine flare-up; although the 2004 examination was provided during a period of severe back pain. Additionally, the Board finds that remanding for a retrospective medical opinion to determine whether there was further loss of motion of the spine during a flare-up based on the medical and lay history contained in the record is not necessary. See Cotta v. Peake, 22 Vet. App. 80 (2008). The Board has reviewed the available medical and lay evidence of record, and finds that a retrospective medical opinion is not necessary in this case as there is no reasonable possibility that such assistance would aid in substantiating the claim. The VA examinations provided prior to 2013 are now at least 6 years old, and it is not reasonable to assume that a medical provider can estimate the extent of limitation of motion caused by flare-ups that occurred between 6 and 14 years earlier based on a review of medical and lay evidence. Additionally, the 2017 examiner has provided a statement that an opinion regarding additional functional impairment or loss of range of motion based on the Veteran's subjective complaints is not feasible. The Board will consider the Veteran's subjective reports of the limitation and functional impairment caused by these flare-ups at that time. This is further discussed in the analysis contained below. To this extent, the Board will rely on the prior VA examinations that did not provide Mitchell opinions. They provide the only objective medical evidence regarding the Veteran's range of motion of his lumbar spine for the period on appeal from 2006 to 2017. Although the 2012 and 2013 examinations were noted to be inadequate in the 2015 JMR, if the Board were to rely on the 2017 examination alone, the Veteran would be disadvantaged, because he had forward flexion of his spine to 85 degrees during that examination. Although the examination reports prior to 2017 are limited in the information they provide related to flare-ups and functional impact, when combined with the 2017 examiner's opinion that it is not feasible to gleam additional functional loss and loss of motion from the Veteran's subject complaints (combined with medical evaluation), the prior examinations do have probative value. Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). For disabilities of the musculoskeletal system, the Board also considers whether a higher disability rating is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Although pain may cause a functional loss, pain itself does not constitute functional loss. Pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243), unless Diagnostic Code 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a. Notably, ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine; A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating; A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; A 20 percent evaluation is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Diagnostic Code 5243 provides ratings for incapacitating episodes for intervertebral disc syndrome (IVDS) as follows: having a total duration of at least one week but less than 2 weeks during the past 12 months (10 percent); having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months (20 percent); having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months (40 percent); having a total duration of at least 6 weeks during the past 12 months (60 percent). "[A]n incapacitating episode is 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." 38 C.F.R. § 4.71a (Diagnostic Code 5243, Note 1). The Veteran filed to reopen a claim of entitlement to service connection for a lumbar spine disability in July 27, 2006. In January 2004, the Veteran was afforded a VA spine examination, in relation to his prior service connection claim. His back pain was severe at the time of the examination. He had "difficulty standing, walking, lifting or bending at 20 degrees." On physical examination he had forward flexion to 60 degrees, 25 degrees of right flexion, 10 degrees of left flexion, 0 degrees of rotation, and 0 degrees of extension. This is a combined range of motion of 95 degrees. He did not have reflex or motor defects in his lower extremities, but he had decreased sensation in his right leg, below the knee. He had positive straight leg raising tests bilaterally. He had paralumbar spasm, left greater than right. He was diagnosed with degenerative disc disease of the lumbar spine. This VA examination does not include repeat range of motion testing or a statement from the examiner related to any additional loss of motion or functional impact based on flare-ups of pain. The examination was, however, provided during a period of severe back pain. Its probative value is related to revealing the Veteran's spine limitation of motion during an episode of severe pain, which significantly impacted his extension, left lateral flexion, and rotation. Following his 2006 claim to reopen, the Veteran provided some limited private chiropractor records from Dr. W.L.B. In May 1984, the Veteran reported constant low back pain with radiation down the right leg. The records are limitedly useful for determining a rating for the Veteran's low back pain, but they do show that he sought chiropractic treatment for low back pain fairly consistently from May 1984 to November 2006. Most of the notes indicated low back pain, occasionally sharp. His pain waxed and waned, as he had days described as "feels good today," (July 2004), or "some discomfort" (May 2006), or "severe pain" (August 2006). The records did not include range of motion of the lumbar spine, and functional impact was not noted in greater detail than things such as "pain in low back when doing anything" (October 1998) and "hurts to sit at times" (September 2006). The Veteran was afforded another VA spine examination in March 2008. He reported he experienced daily low back pain, without radiation. He reported suffering three incapacitating episodes in the prior 12 months. He was receiving all of his spine care from a private medical provider. He had no history of surgery, physical therapy, or injection therapy. He was not taking any prescription medications "specifically for his back." He reported he saw a chiropractor periodically, "with benefit." The Veteran worked for VA, and he related that he was limited to sedentary work. He believed he was limited to standing a maximum of 10 minutes. He stated he suffered flare-ups of symptoms which were "unpredictable" in nature, and could last up to two days. The flare-ups consisted of "increased pain level and decreased activity." He was noted to experience moderate to severe degree of motion pain getting on and off the examination table. He had forward flexion to 60 degrees. He had initial extension to 10 degrees, but it lessened to 0 degrees following repetitions. He had lateral flexion to 15 degrees bilaterally, and rotation to 10 degrees bilaterally. He had end-range pain for all ranges of motion. Based on his lowest numbers, he had a combined range of motion of 110 degrees. Other than his extension, he was not additionally limited after repetitive use. He had a tender lower lumbar spine and positive straight leg raise tests bilaterally. His motor strength and sensory function were normal. His ankle jerks were symmetrically absent. The Veteran was diagnosed with degenerative joint disease and degenerative disc disease of the lumbar spine. A May 2008 rating decision granted entitlement to service connection for a lumbar spine disability, and assigned an initial 20 percent rating, effective July 27, 2006. On his June 2008 notice of disagreement (NOD), the Veteran wrote that he does take medication daily for his low back pain, and he felt he would not be able to "function" without the pain medication. He reported he told the examiner that "after two years of not walking [for exercise] that [he] tried to resume walking and [he] could not get any farther than approximately a half mile." He emphasized that he was only able to walk a half mile on that one occasion, and that he had not tried to take daily walks since. He noted that he was unable to tie his shoe laces without sitting down and grabbing his paints at the shoe level and pulling each foot up. He stated that there was "lots of pain" accomplishing this. He noted he could not bend down from standing and touch his toes. The Board notes that his VA treatment records showed that he had exogenous obesity at this time as well. A March 2006 VA treatment record noted that the Veteran had lower extremity edema likely due to venous insufficiency, and that his legs and feet ache, "much worse with ambulation or with standing for any length of time." His weight at that time was 288 lbs. In December 2009, the Veteran was afforded a third VA examination. This VA examination addressed his left hip disability and his low back disability; he reported that he had pain from both disabilities "all day, every day" and stated that the pain was 7 out of 10 in intensity. He stated his pain was "worse with weather change." This worsening was not further explained in the examination report. He had radiation of his back pain down his bilateral lower extremities, and "at times his ability to walk is affected." He had not had an incapacitating episode in the last 12 months, based upon physician-prescribed bedrest. He had no history of surgery or physical therapy. He was on Tramadol and Celebrex for the treatment of his pain for both disabilities. The examination report included that he was "retired from the county, as he was a Veteran's Affairs officer." He reported he retired early due to back and hip pain, which impacted his job. Unfortunately, this impact was not described in the report. He denied that his activities of daily living were affected, and he denied flare-ups. The Board notes that he stated his pain was worse with the weather but that it "averaged" a 7 out of 10 in intensity, and that his pain was constant and daily. On physical examination, the Veteran had forward flexion to 50 degrees, extension to 10 degrees, lateral flexion to 20 degrees bilaterally, and rotation to 30 degrees bilaterally. This is a combined range of motion of 160 degrees. He had pain throughout range of motion testing, but he did not have additional loss of motion with repetitive use. He did not have spasm and his spine was not tender during this examination. His straight leg raise test was negative bilaterally. He had normal, symmetric deep tendon reflexes, but a decrease in sensation on the left lateral thigh. He had 4 out of 5 strength in both lower extremities. Lumbar radiculopathy was not diagnosed. Additionally in December 2009, the Veteran was afforded a VA nerves examination. He reported that he had back pain since service, which had progressively worsened. "There are some days that he can hardly move, and some days when he does pretty well." He reported his low back pain radiated into both legs and hips, and down to the calves, but never to the feet or toes. He reported he could not stand too long due to pain. He also had a recent diagnosis of diabetes. He noted he stopped working on July 1, 2009 due to not being able to sit or stand for "too long." This examination report indicated that the Veteran's low back pain was impacting his activities of daily living "in that he cannot do any strenuous lifting, or any lifting at all." On physical examination, the Veteran was noted to be able to walk "without significant difficulty." He could bend "at the waist only a few degrees because of the low back pain." Straight leg raise tests also resulted in back pain. He had "profound decrease" in "sensation to pinprick, light touch, and vibration even above the knees close to the midthighs." His strength was normal, but he had absent deep tendon reflexes at the ankles bilaterally. He was diagnosed with lumbar spondylosis and peripheral polyneuropathy. On his March 2010 substantive appeal, the Veteran noted that he was "not a habitual complainer" and that he tried to "live with" his back pain the best he was able. He stated he had suffered "many disabling episodes over the years, some of which" stopped him from "any activity." On other occasions he was able to "grin and bear and keep moving." He stated he did not seek medical attention every time his back "g[ave] him trouble." He stated that his chiropractor had kept him on his feet for many years, and he took pain medication with "some relief." He wanted to avoid surgery for as long as possible. The Veteran noted that his private physician did not agree with the VA examiner's finding that the Veteran's left hip disability was due to his weight. He also noted he had recently lost weight (a specific weight was not provided). He stated he had been seeing his private physician for 25 years. There are limited VA treatment records for the Veteran, as he received much of his care privately, but sought medication refills through VA. A January 2011 primary care note, however, indicated that the Veteran was controlling his degenerative disc disease with exercise and he had stopped his daily Celebrex and nightly Tramadol in favor of daily walking. He had not "needed pain medication with regular exercise." He was noted to have lost 32 lbs. since August 2009. Following the issuance of a SSOC which included the information from his January 2011 VA treatment note, the Veteran provided a statement in April 2011 that he continued to take his pain medication. He reported that someone was mistaken and that he did not walk daily. He noted his private physician prescribed Celebrex and Ultracet for his pain. A September 2011 VA treatment record included that the Veteran's degenerative disc disease was generally controlled with exercise and walking. He had stopped daily Celebrex due to fear of long-term cardiac side effects. He reported he was going to go on a road trip to Oklahoma, Texas, and New Mexico. His "right low back has been acting up and [he requested a] re-start of Tramadol" to take as needed for pain. He was encouraged to continue his regular exercise as tolerated and a prescription for Tramadol was provided. A March 2012 VA treatment record included that the Veteran's lumbar spine disability pain was generally controlled with exercise and walking. He had stopped his daily Celebrex due to fear of long-term cardiac side effects. He used Tramadol as needed, which was effective for his pain relief. He had gained 13 lbs. in the past year, which he attributed to "recent inactivity due to gout flare." He stated he usually went to the YMCA 3 to 5 times per week, walking five miles and doing the weight machines. He stated he had not done that regularly lately and knew that he needed to resume his exercise schedule and lose weight. The record also noted the Veteran went on a road trip with his wife to Oklahoma, Texas, and New Mexico in October 2011. Regarding his gout, it was noted he had bilateral edema, worse on the right, which was attributed to his gout. He had an on-going attack which was being treated by his podiatrist for the past seven weeks. The pain was in his right foot, and although it had mostly resolved, his swelling remained. In March 2012, the Veteran testified at a Board hearing regarding several issues, including his claim for an increased rating for his lumbar spine disability. The Veteran's representative asked him if his spine condition had worsened since his December 2009 examination, and he stated that the pain was now to the point that he had "difficulty every day, just normal everyday living." He reported difficulty tying the laces on his shoes. He could not pick up tree limbs that fell in his yard. He stated he was being treated for his back disability with Celebrex and Tramadol, prescribed by his private physician. He reported that his back pain was constant. His representative then asked if he had flare-ups of symptoms, such as when he would attempt to pick up limbs in his yard. The Veteran stated that he had flare-ups where the pain was so bad he was "absolutely unable to do anything." He stated that his flare-ups depended on the activities he tried to participate in. He stated he had never been placed on bedrest by a physician. He stated that he would, essentially, put himself on bedrest due to his back pain once or twice per month. He felt his back pain interfered with "anything and everything that [he] attempt[ed] to do." He stated that it was constant and he was "very limited in what [he could] do." He noted he could not stand or sit for "too long" due to the pain. The Veteran reported that he attempted to "go out" on disability retirement, but that since he was over 65 he could not "go out on disability retirement." Instead he stopped working via "regular retirement" on July 1, 2009. But he felt that his back impacted his ability to work enough that he was seeking disability retirement. The Veteran indicated he received all of his spine treatment from his private physician "S." He had radiation of pain, "it's been a good little while since [he] had that problem. But [he] did have that problem and it was severe at one time." He was asked if he received any treatment for his low back and left hip from VA providers, and he replied negatively. He stated he also saw private physician, Dr. M.D., as a family practitioner. Dr. M.D. had replaced Dr. M., who had treated him for more than 25 years, but who was now deceased. An October 2012 Board decision remanded the issues so that the Veteran could be afforded an updated VA examination, and to request that he provide releases for his private treatment records. Additionally, in October 2012, the AOJ sent the Veteran a letter requesting that he provide releases for medical records from his private care providers, specifically Dr. M.D. The Veteran provided a release for Dr. M.D. for "April 2011 to the present" in December 2012. Twice in December 2012, the AOJ sent letters requesting records from Dr. M.D. In January 2013, the AOJ faxed a request to Dr. M.D., and called and spoke to a records provider. She indicated that the records would be sent, but they were not. The Veteran was provided with a letter in December 2012, that VA had not yet been able to obtain any of the private treatment records from Dr. M.D. In November 2012, the Veteran was afforded another VA spine examination. The Veteran reported flare ups of back pain. He stated that weather changes and bending over to pick up an object increased his back pain. Also, standing longer than 20 minutes increased his back pain, which "sitting in the right position improve[d]." The Veteran had forward flexion to 70 degrees, with pain at 50 degrees. His combined range of motion, using the lowest numbers, was 100 degrees. After repetitive use testing, the Veteran's forward flexion was to 70 degrees. He had tenderness to palpation of the paraspinous muscles. He did not have guarding or muscle spasm. He had normal muscle strength. His left ankle deep tendon reflex was absent. He had a normal sensory evaluation. He had negative bilateral straight leg raise tests. The examiner found that the Veteran had mild left lower extremity radiculopathy (sciatic nerve). The examiner found that he did not have radiculopathy of his right lower extremity. The examiner found the Veteran did not have intervertebral disc syndrome (IVDS). The Veteran's lumbar spine impacted his ability to work by making him unable to flex his back enough to pick up objects from the floor, being unable to stand for longer than 20 minutes "without function limiting back pain." The report cited a March 2008 x-ray which showed loss of disc height at L4/5 and L5/S1, large osteophytes at most levels, worse at L1 through L3, and degenerative changes involving the posterior elements of L4/5 and L5/S1. His left hip evaluation noted the Veteran could not squat or lift greater than 20 lbs. due to his left hip pain. Also in November 2012, the Veteran submitted limited private treatment records. The records included a November 2009 treatment record from Orthopedic Specialists of Spartanburg (Dr. S.). At that time, the Veteran's left hip arthritis limited his ability to walk to 25 yards, and he had to climb stairs carefully. It noted the Veteran had retired recently, and his retirement had improved his symptoms somewhat. "He also had been having some intermittent low back pain." He was being treated with Celebrex and Ultracet. A November 2012 letter from Dr. M.D. included that the Veteran had been unable to work due to his left hip and lumbar spine disabilities since 2009. VA treatment records from November 2012 included the same notation related to the Veteran's pain being "generally controlled" by exercise/walking, and his discontinuance of Celebrex due to side effects. The assessment included that he would be started on Naproxen to replace Celebrex, and he was to continue to use Tramadol as needed. In January 2013, the Veteran was afforded a VA general medical examination in relation to his claim for TDIU. Regarding the impact of flare-ups on the function of the spine, the Veteran stated he took "pain medication constantly, including Naproxen and Tramadol." Range of motion testing showed he had forward flexion to 30 degrees, without objective evidence of painful motion. The Veteran was able to perform repetitive range of motion testing, and post-testing his forward flexion remained limited to 30 degrees. The examiner noted that the Veteran did not have additional imitation of motion due to repetitive-use testing, and he did not have any functional loss or impairment of the lumbar spine. His spine was not tender to palpation and he did not have guarding or muscle spasm. His muscle strength and deep tendon reflexes were noted to be normal throughout. His sensory examination was also normal. However, he had positive straight leg raise tests bilaterally. The examiner marked that the Veteran did not have radicular pain or other signs or symptoms due to radiculopathy, or other neurological findings related to his lumbar spine. The examiner indicated that the Veteran did have IVDS of his lumbar spine, and he had less than one week of incapacitating episodes in the prior 12 months. Regarding the impact of his spine on his ability to work, the examiner remarked that the Veteran had "significant decreased flexion" and pain with the straight leg test. In a February 2013 rating decision, the Veteran was granted service connection for left lower extremity radiculopathy, with an initial 10 percent rating, effective December 3, 2009. A December 2014 Board decision provided an increased 40 percent rating for the Veteran's lumbar spine, effective January 9, 2013, and denied a rating in excess of 20 percent prior to that date. The Board additionally remanded the issue of entitlement to TDIU prior to August 3, 2009 for development. In August 2014, the Veteran transferred his VA care to the "RCBOC;" a medical history and overview was recorded. His active medication list included Tramadol and Naproxen, as needed, for pain. On musculoskeletal review, the Veteran noted "back pain daily", but there was noted to be no loss of movement. The plan included that the Veteran continue to exercise and stretch for his "back/arthritic issues." A sensory examination of his feet, provided based on his diabetes, was noted to be normal. The Veteran appealed the Board's December 2014 decision to CAVC. A November 2015 JMR found that the Board erred by failing to provide adequate reasons and bases with regard to the adequacy of the November 2012 and January 2013 examinations. Notably, the Board found that all examinations were adequate, but both examiners failed to address whether the Veteran had additional limitation of motion or functional loss due to his reported flare-ups. A March 2015 VA list of active medications included Colchicine and Allopurinol for gout, as well as medications for high blood pressure, diabetes, and thyroid replacement. The list of active medications, which included VA and non-VA prescriptions, did not include Tramadol, Celebrex, Naproxen, or other pain medications. A musculoskeletal evaluation included no abnormal findings or complaints, to include the response "none" for "pain in bone or joint" and "loss of motion or function." His neurological evaluation additionally showed no complaints of numbness, hemiparesis, or localized weakness. His sensation, motor function, and reflexes were intact throughout. The March 2015 visit was to seek cardiac care, increasing the likelihood that the active medication list was accurate. The Veteran indicated he had a goal to exercise. He began to participate in a VA weight loss program. He was encouraged to self-monitor his physical activity, and keep a log that could be reviewed by the dietician. The records do not include any information that may have been in an activity log. In July 2015, the Veteran was seen for a follow-up after he fractured multiple ribs. He "fell while loading his riding lawnmower into his truck." He noted he was slowly starting to feel better but still had "a bit of pain." He indicated he "wasn't even aware he had lumbar transverse process fractures." A neurological evaluation noted that there was no weakness in his lower extremities. A September 2015 VA treatment record included that the Veteran was recovering from fractured ribs after his lawnmower fell on him. He did not report pain during his physical examination. The Veteran stated he felt "good" and was "basically back to full activities." Neurological evaluation noted that his sensation, motor function, and reflexes were "intact." Notably, the Veteran did not complain of low back pain or additional functional impact related to his lumbar spine while being seen by VA for follow-up of his rib and transverse process injuries. In September 2016, the Board remanded the increased rating and TDIU claims for additional examinations, specifically to address the Veteran's flare-ups. The remand also requested that the Veteran provide releases for his private medical records for his back disability. A November 2016 AOJ letter requested that the Veteran provide the necessary medical record release forms. The Veteran did not provide releases for any private records, to include the records related to his treatment for this recent injury at a local private hospital. The Veteran was afforded an updated VA spine examination in March 2017. The Veteran reported that post-service he saw a chiropractor, with relief. He went frequently for several years, and continued to have chiropractic treatment, with his last visit "a few weeks ago." He stated that his back was "painful every day" and that he had "trouble getting out of bed." He noted that if he did any bending, it was "very difficult and it [was] hard to straighten up afterwards." He reported daily intermittent pain, maximally located at midline near the lumbosacral junction. The pain was "stabbing" and made worse by "trying to move a chair in the living room." His pain was improved by lying down on his side. He noted his "average" pain was a 4 out of 10. The pain was non-radiating, and he did not describe pain radiating to his lower extremities. The examiner cited a number of medical records pertaining to the Veteran's low back, peripheral neuropathy, and weight from 1967 to 2012. Regarding flare-ups, the Veteran stated that he had flare-ups of back pain when he tried to lift something he had "no business lifting, such as trying to pick up an end of a couch. It is just a lot of pain in lower back." He stated that he would then go see a chiropractor. Regarding any functional loss or impairment of his back, the Veteran stated he had to "be very careful in what [he] attempt[ed] to lift." He stated he used to be able to change the oil and oil filter on his car, but he could no longer do those things. He could not participate in any kind of sport, although he used to bowl and golf. On range of motion testing, the Veteran had forward flexion to 85 degrees, extension limited to 10 degrees. The Veteran had significant restriction in range of motion for extension, right and left lateral flexion, and right and left lateral rotation. His lateral flexion and rotation were all limited to 15 degrees. The examiner noted that pain on examination caused his functional loss/loss of motion. He did not have localized tenderness or pain on palpation. The Veteran was able to complete repetitive range of motion testing, and had no additional loss of motion. He was not being examined immediately after repetitive use over time. The examination was "neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time," or with the Veteran's statements describing functional loss during flare-ups. The examiner noted that he was unable to state without resorting to mere speculation if pain, weakness, fatigability, or incoordination significantly limited the Veteran's functional ability with repeated use over a period of time or functional ability with flare-ups. The Veteran did not have guarding or muscle spasm. He had normal muscle strength throughout. He had normal knee deep tendon reflexes, and hypoactive ankle deep tendon reflexes bilaterally. His sensory evaluation was normal throughout. He had positive straight leg raise testing bilaterally. He did not have radicular pain or any other signs or symptoms due to radiculopathy. He did not have ankylosis. He did not have other neurological abnormalities related to his spine condition. The examiner found that the Veteran did not have IVDS. He did not use assistive devices. The examiner provided some remarks based on observations during the examination. The Veteran was observed to have no pain reaction during prolonged seated position. He did have pain when rising from the seated position. He had end-point pain on forward flexion. His pain worsened with the movement of extension from the forward flexed position back to standing up-right. While standing, the Veteran shifted his weight to his right lower extremity, due to a reported left knee condition. He reported low back pain while in supine position. The examiner found that passive range of motion testing and assessment of pain during passive range of motion was not indicated for this examination. He did have pain during non-weight bearing, as the examiner noted he had pain in the supine position. Regarding functional impact related to employment, the examiner noted that while working in mail delivery, the Veteran had difficulty completing a daily walking route and carrying a heavy mail bag on his shoulder, due to his low back disability. The examiner noted that the Veteran was not having a flare-up of low back symptoms at the time of the examination, and therefore it was not possible to assess or confirm any significant limitation in functional ability or to provide any additional loss in degrees of range of motion during a flare up or following repeated use over time without witnessing an episode. An April 2017 VA note included that the Veteran was having trouble "moving his legs." He had to "rock back and forth to propel himself out of a chair," and had trouble dressing himself due to weakness. His wife stated that this weakness began after he started taking Risperidone. His psychiatrist then reduced his dose of Risperidone. Other records from 2016 and 2017 indicated that the Veteran was suffering from cognitive decline and had a provisional diagnosis of frontotemporal dementia, which resulted in the treatment with Risperidone. Based on his dementia, it was recommended that the Veteran stop driving. A March 2017 list of the Veteran's medication did not include pain medication. It is possible that the Veteran's cognitive decline is part of the reason more recent attempts to obtain private treatment record releases from him have gone unanswered. In August 2017, the Board remanded the Veteran's claims to seek releases for his private medical records, including the chiropractor records mentioned in his 2017 VA examination. The AOJ sent a letter requesting releases for private medical records in September 2017. The Veteran did not respond to the request within three months, and the claims were transferred to the Board for adjudication. Analysis Initially, the Board notes that the Veteran is separately service-connected for left lower extremity radiculopathy, effective December 3, 2009, and that rating is not currently on appeal. Regarding neurological information in the record, the Veteran was afforded an EMG in May 1999, which showed mild peripheral neuropathy affecting mainly the left lower extremity. During his 2008 VA examination, he denied radiation of pain. By December 2009, the Veteran reported radiation of his back pain down both extremities. After evaluation, lumbar radiculopathy was not diagnosed. In another December 2009 statement, the Veteran stated his back pain radiated to both hips and legs, but not past his knees. He was diagnosed with diabetes by at least 2010. During his 2012 Board hearing, the Veteran testified that he had suffered from radiation of pain "at one point," but that it had "been a good little while." A November 2012 examination included a finding of mild left lower extremity radiculopathy. He was not found to have right lower extremity radiculopathy. During his 2017 VA examination, the Veteran again stated that his pain was non-radiating. He did not have radicular pain, and although he had positive straight leg raise tests, the examiner found that he did not have lumbar radiculopathy. A review of VA treatment records does not include treatment for or complaints related to lumbar radiculopathy. Given that the record does not contain a diagnosis of right lower extremity radiculopathy, and the Veteran's most recent examination included his statement that he did not have radiation of lumbar pain, the Board finds that entitlement to a separate rating for right lower extremity radiculopathy is not warranted. The record does not contain any indication of additional separate neurological problems associated with his lumbar spine disability. Regarding IVDS, the November 2012 and 2017 examiners noted that the Veteran did not have a diagnosis of IVDS. The January 2013 general medical examination included that the Veteran did have IVDS with less than one week of incapacitating episodes in the prior year. During his 2012 hearing, the Veteran stated that he had never been prescribed bedrest by a physician. He stated that he, essentially, put himself on bedrest up to twice per month. Notably, the record does not include medical treatment records from where the Veteran sought treatment specifically for his lumbar spine, or an increase in spine pain. VA treatment records do not include a diagnosis of IVDS. Given that there are no treatment records specifically for treatment for his lumbar spine disability, and the Veteran has denied ever being prescribed bedrest by a physician, increased ratings based on incapacitating episodes are not shown to be warranted. Turning to the adequacy of the examinations contained in the claims file, the Board again notes that the 2012 and 2013 examinations did not include opinions from the VA examiners related to any additional loss of motion in degrees based on the Veteran's statements regarding flare-ups and the functional impact of repetitive use over time. The JMR noted that an examiner needed to provide an "opinion on whether pain could significantly limit functional ability," and such determinations should "if feasible, be 'portray[ed]'...in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Mitchell v. Shinseki, 25 Vet. App. at 44. The 2017 examiner determined that it was not feasible to provide an opinion on the degree of additional range-of-motion loss due to pain on use or during flare-ups. The examiner indicated that as the examination was not occurring during a flare-up or after repetitive use over time, and he was unable to witness the impact of the flare-ups or after repetitive use over time, he would be merely speculating as to the impact it would have on the Veteran's functionality or the degree of loss of motion. After examination and interview of the Veteran, as well as a review of the available medical evidence (including citation to records from service to 2012), the examiner indicated that there was insufficient evidence to base a medical determination on the Veteran's reports of limitation and functional impact, as the examination was "neither medically consistent nor inconsistent with the" Veteran's statements. To further support this, the examiner noted that the Veteran was able to sit for a period of time without objective pain, but that he had objective pain moving from sitting to standing. He also did not have objective pain forward flexing until 85 degrees (end point pain), but had objective pain moving back through extension to a neutral/upright position. The Board accepts the 2017 examiner's medical opinion that it is not feasible to provide an additional degree of loss or impairment based on the Veteran's statements in combination with the examination and evidence of record. The Board also accepts the 2017 examiner's medical opinion that the examination was not "medically consistent with or inconsistent with" the Veteran's statements. In Jones v. Shinseki, 23 Vet. App. 382 (2010), CAVC stated that VA need not "proceed through multiple iterations of repetitive medical examinations until it obtains a conclusive opinion or formally declares that further examinations would be futile," but it must be clear "that the examiner has not invoked the phrase 'without resort to mere speculation' as a substitute for the full consideration of all pertinent and available medical facts to which a claimant is entitled." Here, the examiner cited the limited available medical treatment records, cited the Veteran's statements related to his flare-ups and functional loss, recorded the pertinent range of motion testing and additional observations related to the Veteran's pain during his time in the examiner's presence, and determined that he could not speculate on functional impact or additional loss of range of motion without observing the Veteran during a flare-up or after repetitive use over time. As such, the Board accepts the 2017 examination as adequate, and will not seek additional VA examination in an attempt to force or chase down a conclusive opinions. Although the 2015 JMR noted that the 2012 and 2013 examinations were not adequate based on Mitchell criteria, the Board will not solely rely on the 2017 adequate examination in determining the appropriate ratings for the Veteran's lumbar spine condition. Indeed, it appears the Veteran has had improvement in his spine disorder, perhaps as a result of retiring. His 2017 examination included his "best" range of motion, to include forward flexion to 85 degrees. He would be disadvantaged by the Board's reliance singularly on the 2017 examination. As the 2017 examiner has noted that it was not feasible to provide Mitchell findings, the Board will address the 2012 and 2013 examinations for the probative value that they provide in assessing his lumbar spine disability prior to 2017. In adjudicating a claim, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board acknowledges that the Veteran is competent to give evidence about what he experiences. See Layno v. Brown, 6 Vet. App. 465 (1994). Here, the Board finds that the Veteran's statements regarding the severity of his lumbar spine disability are not fully credible. This determination is made without the benefit of his private treatment records. The Board notes again that the Veteran's claim has been pending for 12 years. During three of the Board's remands, the Board has instructed the AOJ to reach out to the Veteran to request private treatment records/releases for private treatment records. The Veteran testified in 2012 that he was receiving care from Dr. S. (musculoskeletal) and Dr. M.D. (primary care provider). In 2015, he was treated for rib and transverse process fractures after loading a lawnmower into his truck. During the 2017 examination, the Veteran indicated that his chiropractic care had extended from 2006 to 2017. In 2012, the Veteran provided a release for records from Dr. M.D.. The AOJ attempted to obtain those records via two letters, one fax, and one phone call. The AOJ also sent a letter to the Veteran informing him that it was ultimately up to him to provide VA with private records; as a VA representative for six years he also had actual knowledge of this. Without private care records, the Board must rely on VA treatment records, VA examinations, and the Veteran's statements. Significantly, in a March 2010 statement the Veteran noted he was "kept on his feet" through a chiropractor and pain medication, and that sometimes his back pain stopped him from "any activity." A January 2011 VA treatment record noted that the Veteran was controlling his back pain through exercise/walking and he had stopped his prescription pain medication. It was also noted that his exercise had resulted in the loss of 32 lbs. This treatment record was mentioned in a supplemental statement of the case (SSOC), so in April 2011 the Veteran provided a statement that he continued to take pain medication and that he did not exercise daily. However, then a September 2011 VA treatment record included the specifics that he had stopped Celebrex due to cardiac side-effects, and he request to re-start Tramadol. Additionally, despite statements that he could not sit for "too long" due to his back pain, he reported to the September 2011 VA provider that he was going on a road trip to Oklahoma, Texas, and New Mexico. During his March 2012 hearing, the Veteran testified that had difficult "just normal everyday living" due to his back pain, and that he had to put himself on bedrest up to twice per month. However, a March 2012 VA treatment record included that the Veteran "usually went to the YMCA 3 to 5 times per week, walking five miles and doing the weight machines" until a recent flare up of gout. Although a VA treatment record indicating the Veteran "walked" or "exercised" may have been recorded by accident, the specifics contained in the Veteran's treatment records do not tend to support his contention that he had difficulty with "everyday life" or that he was actually taking pain medications in 2011 prior to requesting that he be "re-start[ed]" on Tramadol. Again, without private treatment records, the VA treatment records contradict the Veteran's account of his limitations based on his low back disability and on his treatment with prescription pain medication. Notably, although the Veteran was noted to have limitation of flexion to 30 degrees during the January 2013 VA examination, there was no objective evidence of painful motion during that forward flexion. His forward flexion in 2012 was limited to 70 degrees, with pain at 50 degrees. By 2017, his forward flexion was to 85 degrees, with no additional loss of motion with repetitive testing during the 2012 or 2017 examinations. More consistently, the Veteran was noted to have significant loss of motion with extension, lateral flexion, and rotation. However, the regulations are written such that a rating in excess of 20 percent generally requires a greater loss of forward flexion. Oddly, despite telling the 2017 examiner that he had to be careful with what he tried to lift, and that he experienced flare-ups of symptoms when he attempted to move a chair or lift a corner of a couch, the Veteran injured himself in 2015 attempting to load a riding lawnmower into his truck. Indeed, during the 2015 injury to his ribs, the Veteran did not make any complaints to VA treatment providers related to back pain. Given all of the above, the Board finds that the Veteran's statements are less than credible regarding the severity and frequency of his lumbar spine pain and functional impairment. As noted above, to warrant a rating in excess of 20 percent, the Veteran's lumbar spine disability needed to result in forward flexion to 30 degrees or less, or to have favorable ankylosis of his entire thoracolumbar spine. There is no evidence in the record of ankylosis of the thoracolumbar spine. In 2004, the Veteran had forward flexion to 60 degrees. Notably, the January 2004 examination was provided when the Veteran was in severe pain, and is likely as close as the record contains to the limitation the Veteran had during a flare-ups of symptoms. In March 2008 examination also included forward flexion to 60 degrees, and this range of motion was not lessened with repeated range of motion testing. In December 2009, he had forward flexion to 50 degrees, without additional loss with repetitive use. In March 2012, his forward flexion was to 70 degrees, with objective pain at 50 degrees. After repetitive testing, his forward flexion remained to 70 degrees. In January 2013, his forward flexion was limited to 30 degrees, but without objective evidence of painful motion. He did not have additional loss of motion with repeat testing. By 2017, the Veteran's forward flexion was to 85 degrees, without additional loss of motion with repeat testing. Regarding his description of flare-ups expressed in detail above, combined with the finding that his statements regarding severity/functional impact are less than credible, the Board finds that the evidence is not sufficient to provide increased staged ratings. For the period prior to January 9. 2013, the Veteran's lumbar spine disability did not more nearly approximate a 40 percent rating. He had forward flexion in the range from 50 degrees to 70 degrees. Even taking into account that he would suffer occasional flare-ups, as he described waxing and waning symptoms, he would have needed an additional 20 degrees of loss. Additionally, ratings are provided based on the average impairment of the disability. Here, the record does not indicate that his average impairment more nearly approximated forward flexion limited to 30 degrees or ankylosis. Additionally, from January 9, 2013 the Veteran has had significant improvement in his forward flexion, as by 2017 he had forward flexion to 85 degrees. A rating in excess of 40 percent requires unfavorable ankylosis of the entire thoracolumbar spine, or unfavorable ankylosis of the entire spine. Again, there is no indication in the file that the Veteran had ankylosis of the spine, or that his symptoms more nearly approximated ankylosis of the spine. Accordingly, the Board finds a preponderance of the evidence is against the assignment of a staged increased ratings for the Veteran's lumbar spine disability. As such, the benefit-of-the-doubt rule does not apply, and the claims are denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to an initial rating in excess of 20 percent for lumbar spine disability, prior to January 9, 2013 is denied. Entitlement to a rating in excess of 40 percent for lumbar spine disability, from January 9, 2013 is denied. REMAND A November 2012 letter from the Veteran's primary care physician, Dr. M.D., noted that the Veteran had been unable to work due to degenerative joint disease of the left hip and degenerative disc disease of the lumbar spine, since 2009. Also in November 2012, the Veteran's prior employer submitted paperwork that the Veteran had last worked on May 11, 2009. Attached was a letter from the Cherokee County Treasurer, wherein she reported that the Veteran had inquired about disability retirement in September 2008. She called the retirement system to inquire on the Veteran's behalf and was told he was not eligible for disability retirement due to his age (65 or older). As such, the Veteran opted to start the "service retirement process." In March 2013, an opinion was sought regarding the Veteran's employability based on his service-connected disabilities. The examiner noted that the Veteran's spine limited his ability to pick objects up off the ground, and to stand for longer than 20 minutes. His left hip rendered him unable to squat or lift greater than 20 lbs. He was additionally service-connected for sleep apnea, duodenal ulcer disease, hearing loss, cellulitis of the left foot, right inguinal herniorrhaphy, and a scar from the hernia surgery. The examiner noted that the listed service connection disabilities would "render it difficult for the Veteran to obtain and maintain both sedentary and physically gainful employment." Prior to August 3, 2009, the Veteran's combined rating for his service-connected disabilities was 50 percent. This does not meet the jurisdictional requirements of 38 C.F.R. § 4.16 (a). The Board does not have jurisdiction to grant TDIU in the first instance. On remand, the claim should be referred to the Director of Compensation Service for consideration of TDIU on an extraschedular basis under 38 C.F.R. § 4.16 (b). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Refer the case to the Director, Compensation Service for extraschedular consideration for TDIU. Include a full statement as to the Veteran's service-connected disabilities, employment history, educational history, and all other factors having a bearing on the issue. 2. Once the extraschedular TDIU claim has returned from the Director of Compensation Service, readjudicate the Veteran's claim. If the decision remains adverse to the Veteran, he should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. (CONTINUED ON NEXT PAGE) The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs