Citation Nr: 1214721	
Decision Date: 04/24/12    Archive Date: 05/03/12

DOCKET NO. 08-33 973A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1. Entitlement to an initial rating in excess of 20 percent for degenerative disc disease, status-post laminectomy of the thoracolumbar spine, effective from October 1, 2007 (considered apart from a separate 10 percent initial rating for associated right lower extremity radiculopathy, effective from May 16, 2011).

2. Entitlement to an initial rating in excess of 30 percent for gastroesophageal reflux disease. 


ATTORNEY FOR THE BOARD

S. Higgs, Counsel






INTRODUCTION

The Veteran served on active duty from October 1974 to September 2007. 

These matters are before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in March 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

In a rating decision dated in January 2012, the RO granted service connection for right lower extremity radiculopathy and assigned a separate initial rating of 10 percent, effective from May 16, 2011. The Veteran was informed of this decision by an RO letter dated on January 17, 2012. 

Although these matters are related to the current severity of the Veteran's degenerative disc disease of the thoracolumbar spine, they are not inextricably intertwined with the matters on appeal. The Board expresses no opinion and enters no findings as to the date of onset or severity of the Veteran's newly service-connected radiculopathy of the right lower extremity. As a result, the currently appealed claim for a higher initial rating for degenerative disc disease of the lumbar spine may now be considered without prejudice to any future appeal as to the proper effective date or initial rating for separately service-connected and rated right lower extremity radiculopathy. 

The issue of entitlement to an initial rating in excess of 30 percent for gastroesophageal reflux disease is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.




FINDINGS OF FACT

1. From October 1, 2007, forward, the Veteran has forward flexion of the thoracolumbar spine of approximately 30 degrees, after taking into consideration additional functional impairment due to pain.

2. From October 1, 2007, forward, the Veteran has not experienced disability meeting or approximating unfavorable ankylosis of the entire thoracolumbar spine.

3. The Veteran has not experienced incapacitating episodes of intervertebral disc disease having a total duration of at least 6 weeks during any 12-month period from October 1, 2007, forward.


CONCLUSION OF LAW

The criteria for a higher initial disability rating of 40 percent, but no more, for degenerative disc disease, status-post laminectomy of the thoracolumbar spine, effective from October 1, 2007 (considered apart from a separate 10 percent rating for associated right lower extremity radiculopathy, effective from May 16, 2011), are approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321(b), 4.7, 4.71a, Diagnostic Code 5243 (2011).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

In this decision the Board finds that the Veteran has functional limitation of forward flexion of the thoracolumbar spine to approximately 30 degrees. Accordingly, after affording reasonable doubt in favor of the Veteran, a higher initial rating of 40 percent for degenerative disc disease of the thoracolumbar spine, based on limitation of motion, is granted.

The Board will discuss the relevant law it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published at Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction; the Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts).

The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). 
Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"); Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). 

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 


Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1).

However, with the grant of service connection the Veteran's claim for service connection for disability of the thoracolumbar spine was substantiated and proven. The matter on appeal arose as a result of a notice of disagreement with the initial rating assigned. Thus no further VCAA notice was required with respect to the claim. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice arises upon receipt of a notice of disagreement). Under the circumstances, any perceived defect with respect to the timing or content of notice requirements of the VCAA can be no more than harmless, non-prejudicial error. 

In addition, although in excess of what is required, a May 2008 VCAA letter explained the evidence necessary to substantiate the claim for a higher initial rating and also informed the Veteran of his and VA's respective duties for obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, the May 2008 VCAA notice letter explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

The RO has obtained the relevant identified records of treatment and examination. They are adequate for rating purposes for the claim for the a higher initial rating for thoracolumbar spine disability claim in that they consistently reflect with consideration of the benefit of the doubt rule that the Veteran has forward flexion of the lumbar spine of approximately 30 degrees or less after considering functional impairment due to pain, thus warranting a higher initial rating of 40 percent; but further reflect by a preponderance of the evidence that the Veteran has not experienced incapacitating episodes of intervertebral disc disease having a total duration of at least 6 weeks during any 12-month period from October 1, 2007, forward, and does not have a level of disability that meets or approximates unfavorable ankylosis of the entire thoracolumbar spine, as would be required for a rating in excess of 40 percent. See 48 C.F.R. § 4.71a, Diagnostic Code 5243. As a result, the July 2007 and May 2011 VA examination reports and the post-service records of treatment are adequate for rating of the Veteran's claim for a higher initial rating for low back disability. Further RO development of the evidence would yield no reasonable possibility of achieving a higher initial rating than a disability rating of 40 percent, as assigned in today's Board decision. The evidence of record and the Veteran's statements show that there is no reasonable possibility, and there is no contention, that the Veteran has experienced six weeks or more per year of incapacitating episodes due intervertebral disc syndrome or that he has unfavorable ankylosis of the entire thoracolumbar spine.

Based on the foregoing, the Board finds that, in the circumstances of the Veteran's claim, any additional development or notification would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided).


Merits of the Claim

The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

In determining the current level of impairment, a disability must be considered in the context of the whole-recorded history. 38 C.F.R. §§ 4.2, 4.41. An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).

In evaluating the severity of a particular disability it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). A claim such as this one, placed in appellate status by disagreement with the initial rating award and not yet ultimately resolved, is an original claim as opposed to a new claim for increase. Fenderson v. West, 12 Vet. App. 119 (1999). In such cases, separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id 

Pursuant to the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 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. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. Unfavorable ankylosis of the entire spine warrants a 100 percent evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (for rating of intervertebral disc syndrome).

In addition to evaluating intervertebral disc syndrome (Diagnostic Code 5243) under the general rating formula for diseases and injuries of the spine, outlined above, it may also be rated on incapacitating episodes, depending on whichever method results in the higher evaluation when all service-connected disabilities are combined under 38 C.F.R. § 4.25. 

A 10 percent rating is warranted for incapacitating episodes of intervertebral disc syndrome having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes of intervertebral disc syndrome having a total duration of at least 4 weeks but less than 6 weeks during the last 12 months. A 60 percent disability rating is warranted where the evidence reveals incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.

Note (1) to Diagnostic Code 5243 defines an 'incapacitating episode' 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." 

As instructed by Note (1) to the General Rating Formula for Disabilities of the Spine, the rater is to separately evaluate any associated objective neurologic abnormalities. As noted in the introduction section of this decision, above, the RO granted service connection for radiculopathy into the right lower extremity by an letter dated in January 17, 2012. An initial rating of 10 percent was assigned with an effective date of May 16, 2011. The Veteran has until January 17, 2013, to submit a notice of disagreement with the RO's determination should he wish to initiate an appeal of the rating assigned or effective date for radiculopathy of the right lower extremity; those matters are not within the Board's current jurisdiction. See 38 U.S.C.A. §§ 7104, 7105. 

Note (2) provides that for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.

A March 2006 (in-service) letter from a physician at the Naval Medical Center states that the Veteran had failed back syndrome following lumbar laminectomy. He was noted to require daily pain management and to have significant low back pain with exacerbation by positional restraints. The purpose of the letter was to recommend altered aircraft accommodation due to the Veteran's back disorder. 

At a pre-discharge VA examination in July 2007, forward flexion of the thoracolumbar spine was 50 degrees, with pain occurring at 30 degrees. Extension, right lateral flexion, left lateral flexion, right rotation, and left rotation of the thoracolumbar spine were each 30 degrees. The examiner indicated that on repetitive use the joint function of the spine was additionally limited by pain, fatigue, and lack of endurance. Pain had the major functional impact. The inspection of the spine revealed normal head position with symmetry in appearance. There was symmetry of spinal motion with abnormal curvatures of mild kyphosis. There were no signs of intervertebral disc syndrome with chronic and permanent nerve root involvement. Neurological examination of the lower extremities was normal. 

The diagnosis at the July 2007 pre-discharge VA examination was thoracolumbar degenerative disc disease status post laminectomy with residual scar. The subjective factor was persistent low back pain. The objective factors were a well-healed scar, decreased range of motion, medical record documentation, and X-ray documentation of the lumbar spine and degenerative hypertrophic changes of the thoracic spine. The effect on the Veteran's daily activity, when considered in combination with his other service-related disabilities, was pain with lifting, bending, prolonged standing and walking.

May 2008 records of treatment that appear to be from the Naval Medical Center include findings of significantly decreased forward flexion of the lumbar spine. The Veteran was receiving opioids and NSAIDS for treatment of pain. An MRI was indicated to show degenerative joint disease at all lumbar levels and degenerative disc disease. He was described as having continuous chronic low back pain with intermittent incapacitation. He was described as able to function at a baseline level only with chronic use of opioid medications, and was described as being incapacitated without these medications.

At a VA examination in May 2011, the Veteran indicated that his condition, in the past 12 months, had not resulted in any incapacitation. He described functional impairment of inability to bend and lift objects. Initial range of motion of the thoracolumbar spine was 35 degrees flexion, 30 degrees extension, 30 degrees right lateral flexion, 30 degrees left lateral flexion, 30 degrees right rotation, and 30 degrees left rotation. Onset of pain was at 30 degrees for forward flexion, and at 30 degrees for extension, right lateral flexion, left lateral flexion, right rotation, and left rotation. Repetitive range of motion was possible and there was no additional degree of limitation. The examiner indicated that on repetitive use joint function was additionally limited by pain, fatigue, weakness, lack of endurance, and incoordination. 

From October 1, 2007, forward, the Veteran has experienced functional forward flexion of the thoracolumbar spine of approximately 30 degrees. Although forward flexion at his July 2007 pre-discharge VA examination was 50 degrees, onset of pain was at 30 degrees, and pain was the most limiting factor affecting functional impairment of his spine. At the May 2011 VA examination, forward flexion of the lumbar spine was measured at 35 degrees, but pain again began at 30 degrees. Taking into account pain as a factor affecting functional impairment, and affording the Veteran the benefit of the doubt, the Board finds that a higher initial rating of 40 percent is warranted for the full rating period on appeal, from October 1, 2007, forward. See 38 C.F.R. § 4.71a, Diagnostic Code 5243.

From October 1, 2007, forward, the Veteran has not experienced disability meeting or approximating unfavorable ankylosis of the entire thoracolumbar spine. The preponderance of the evidence shows that the Veteran has motion of the thoracolumbar spine in all measured directions. As a result, the next higher rating of 50 percent is not warranted under the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, Diagnostic Code 5243.

The evidence does not establish incapacitating episodes, as defined by Note 1 to Diagnostic Code 5243, having a total duration of at least 6 weeks during a previous 12-month period from October 1, 2007, forward. There is no evidence of any bed rest prescribed by a physician; although there is a finding by a physician that the Veteran would be incapacitated without the  benefit of pain medication. At the May 2011 VA examination the Veteran indicated by history that he had not experienced a period of incapacitation during the past twelve months. The preponderance of the competent clinical evidence of record is against an evaluation in excess of 40 percent for the disability at issue based on incapacitating episodes of intervertebral disc syndrome, because there is no evidence of incapacitating (to include best rest prescribed by a physician) episodes of at least six weeks during any 12-monht period from October 1, 2007, forward. Accordingly, the preponderance of the evidence is against a finding for the next higher available rating of 60 percent based on incapacitating episodes.

As discussed above, at no time from October 1, 2007, is a rating in excess of 40 percent warranted for degenerative disc disease of the thoracolumbar spine, as considered apart from a separate 10 percent rating for associated right lower extremity radiculopathy, effective from May 16, 2011, either based on limitation of motion or incapacitating episodes. Accordingly, a staged rating in excess of 40 percent is not warranted rated for any period of time from October 1, 2007, forward. See Fenderson v. West, 12 Vet. App. 119 (1999). 
 
The Board has considered whether this case should be referred to the Director, Compensation and Pension Service, for extraschedular consideration for rating of the Veteran's service-connected degenerative disc disease of the lumbar spine. The governing norm in such exceptional cases is:  A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b). 
If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the highest available schedular rating supported by the evidence is based on limitation motion, as considered with additional functional impairment as due to pain so as to meet or approximate the rating criteria for 40 percent. The limitation of motion of forward flexion of the lumbar spine with additional functional limitation due to pain is directly and fully contemplated by the rating schedule as applied in this decision. As a result, referral for extraschedular consideration is not warranted.


ORDER

 An initial rating of 40 percent, but no more, for degenerative disc disease, status-post laminectomy of the thoracolumbar spine, effective from October 1, 2007 (considered apart from a separate 10 percent rating for associated right lower extremity radiculopathy, effective from May 16, 2011), is granted.


REMAND

In November 2008 the RO received from the Veteran non-VA records of treatment that include September 2008 medically complex test results from the Naval Medical Center pertaining to the nature and severity of the Veteran's gastroesophageal reflux disease. The Veteran's gastroesophageal reflux disease is rated by analogy under the rating code for a hiatal hernia, based in part on whether the impact on the Veteran's health is "considerable" or "severe." See 38 C.F.R. §§ 4.20 (Analogous ratings), 4.114 Diagnostic Code 7346 (rating code-hiatal hernia). If the impact on health is severe, the next higher rating of 60 percent rating may be warranted. See 38 C.F.R. § 4.114, Diagnostic Code 7346. 

A May 2011 VA examination report contains no consideration or mention of the September 2008 private test reports. The Board does not have the medical expertise to interpret the findings of the September 2008 private test results as they pertain to the more specific aspects of the rating criteria, or more generally whether the impact of his service-connected gastrointestinal disease on his health is considerable or severe, as directly contemplated in the rating criteria. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). As a result, the examination report must be returned for corrective action. See 38 C.F.R. § 4.2.

Additionally, the RO/AMC must seek to obtain any additional potentially relevant records of VA or private treatment. See 38 U.S.C.A. § 5103A(a)-(d).

Accordingly, the case is REMANDED for the following action:

1. Request the Veteran to identify all records of VA and non-VA health care providers who have treated him for gastroesophageal reflex disease from October 1, 2007, forward, that may not have been previously received by the RO. 

(a) After obtaining any appropriate authorizations for release of medical information, the RO/AMC must seek to obtain any potentially relevant records that have not been previously received from each health care provider the Veteran identifies. 

(b) The records of treatment sought must include all relevant records of treatment at the Naval Medical Center from October 1, 2007, forward, that have not been previously sought and obtained.

(c) The Veteran must also be advised that with respect to private or other non-VA medical evidence he may alternatively obtain the records on his own and submit them to the RO/AMC.

2. Seek to obtain a medical opinion that interprets the September 2008 results of testing for gastrointestinal disease at the Naval Medical Center. 

The following considerations will govern preparation of the medical opinion:
   
(a) The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials in any report generated as a result of this remand.

(b) If the examiner finds that further examination or testing of the Veteran is required to answer the questions posed by the Board, such examination and testing must be scheduled.

(c) The examiner must provide findings as to the extent the September 2008 Naval Medical Center test reports, when viewed in the context of other medical records in the claims file, demonstrate or are consistent with persistently recurrent epigastric distress with dysphasia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.

(d) The examiner must provide findings as to the extent the September 2008 Naval Medical Center test reports, when viewed in the context of other medical records in the claims file, demonstrate or are consistent with symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia.

(e) The examiner must provide an opinion as to whether the Naval Medical Center test reports, when viewed in the context of other medical records in the claims file, demonstrate or are consistent with gastroesophageal reflux disease resulting in a combination of symptoms that is productive of severe impairment of health.

(f) The examiner is requested to provide a FULLY REASONED EXPLANATION for his or her opinions, based on his or her clinical experience, medical expertise, and established medical principles. 

(g) In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of the evidence of record. 

(h) The examiner is advised that by law, an examiner's statement that an opinion is based on the medical expertise of the examiner, but without a fully reasoned explanation, is not a legally sufficient opinion and will likely result in a return of the claim to the examiner.

3. Readjudicate the matter on appeal. If any benefit sought remains denied, provide the Veteran and his representative a supplemental statement of the case and an appropriate period of time for response.

Thereafter, subject to current appellate procedure, the case must be returned to the Board for further consideration, if otherwise in order. No action is required of the Veteran until he is otherwise notified by the RO/AMC. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case.

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

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).


______________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs