Citation Nr: 1116579 Decision Date: 04/28/11 Archive Date: 05/05/11 DOCKET NO. 98-12 364A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a right eye vision disability. 2. Entitlement to a disability rating in excess of 10 percent for fracture of the first metatarsal of the left foot with degenerative joint disease (left foot disability). 3. The propriety of the severance of service connection for degenerative joint disease of the lumbar spine, to include reinstatement of a 20 percent disability evaluation effective February 1, 2001. 4. Entitlement to an increased disability rating for a low back disorder. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran had active service from August 1973 to October 1983. The Veteran's appeal as to the issues listed above arose from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In May 1998, the RO denied the Veteran's claim for an increased rating for service-connected fracture of the first metatarsal of the left foot with degenerative joint disease, evaluated as 10 percent disabling, and granted his claim for an increased rating for "chronic low back pain with muscle strain." In the rating sheet, the RO described the Veteran's back disability as degenerative disc disease of the lumbosacral spine, chronic low back pain. The RO increased the rating for the Veteran's back disability from 10 percent to 20 percent. In May 1998, the RO also denied the Veteran's claim for service connection for a vision disability. In March 2000, the RO proposed to sever service connection for degenerative disc disease of the lumbar spine; and in a November 2000 rating decision, the RO determined that granting service connection for degenerative disc disease of the lumbosacral spine in May 1998 had been a clear and unmistakable error, and the RO accordingly severed the grant of service connection for degenerative disc disease and reduced the rating for the Veteran's back from 20 percent to 10 percent to account for the chronic muscle strain syndrome which was the result of the Veteran's military service. In August 2003, the Board remanded the claims for additional development. In July 2007, the RO increased the evaluation of the Veteran's chronic muscle strain with low back pain to 20 percent disabling, effective April 13, 2006. In March 2008, the Board denied service connection for loss of left eye vision and remanded four issues for further development and adjudication. The four issues were: 1) whether new and material evidence had been submitted to reopen a claim of entitlement to service connection for a right eye vision disability, 2) whether a disability rating in excess of 10 percent for fracture of the first metatarsal of the left foot with degenerative joint disease was warranted, 3) whether the severance of service connection for degenerative joint disease of the lumbar spine, to include whether a reduction in the disability rating for a service-connected low back disability from 20 percent to 10 percent, effective February 1, 2001, was proper, and 4) whether an increased disability rating for a low back disability was warranted. In the March 2008 decision, the Board noted that, once a Veteran submits evidence of a medical disability, makes a claim for the highest rating possible, and submits evidence of unemployability, an informal claim for a total disability rating for compensation purposes based on individual unemployability (TDIU) is raised. Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001); 38 C.F.R. 3.155 (2003). The Board found that such a claim for TDIU was present in this case and referred the claim to the RO. See e.g., report from the Social Security Administration (SSA), dated in January 1997. Because this action has not yet been completed, it is therefore referred once again to the RO for appropriate action. In this case, the Board notes that in March 2002, the Veteran was afforded a hearing before a Veterans Law Judge who is no longer with the Board. In a March 2010 letter, the Veteran was afforded an opportunity to request an additional hearing before a Veterans Law Judge. See 38 C.F.R. § 20.717. The Veteran did not respond to this offer. In order to establish jurisdiction over the issue of entitlement to service connection for a right eye vision disability, the Board must first consider whether new and material evidence has been submitted to reopen the claim. See 38 U.S.C.A. §§ 5108, 7104 (West 2002 & Supp. 2009). The Board must proceed in this fashion regardless of the RO's actions. See Barnett v. Brown, 83 F.3rd 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92. The issue has therefore been styled as set forth above. The issue of entitlement to a higher evaluation for the Veteran's service-connected low back disorder 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. In a February 1984 decision, the RO denied the Veteran's claim of entitlement to service connection for right eye vision loss. The Veteran did not file a notice of disagreement and the decision became final. 2. The evidence received since the February 1984 RO decision is not so significant that it must be considered in order to fairly decide the merits of the claim of entitlement to service connection for a right eye vision disability. 3. The evidence does not show that the grant of service connection for degenerative disc disease of the lumbar spine was clearly and unmistakably erroneous. 4. The objective medical evidence shows that the Veteran's low back disorder, from February 1, 2001 to April 12, 2006, was productive of symptoms warranting an evaluation of 20 percent disabling under the relevant diagnostic criteria. 5. At no time during the course of the Veteran's appeal was his service-connected left foot disability productive of severe symptoms such as objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities, or symptoms that more nearly approximate a moderately-severe foot disability . CONCLUSIONS OF LAW 1. A February 1984 RO decision, denying the Veteran's claim of entitlement to service connection for right eye vision loss is a final decision. 38 U.S.C.A. § 4005 (c) (1982); 38 C.F.R. §§ 3.104, 19.129, 19.192 (1983). 2. The evidence received subsequent to the February 1984 RO decision is new but not material, and the request to reopen the Veteran's claim of entitlement to service connection for a right eye vision disability is denied. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108 (West 2002); 38 C.F.R. §§ 3.102, 3.156, 3.159, 20.1103 (2010). 3. The criteria to sever service connection for the Veteran's degenerative disc disease of the lumbar spine have not been met. 38 U.S.C.A. §§ 1110, 5109 (West 2002); 38 C.F.R. §§ 3.105(d), 3.303, 3.310 (2010). 4. The criteria for restoration of a 20 percent disability rating for the Veteran's service-connected low back disorder, from February 1, 2001 to April 12, 2006, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.20, 4.25, 4.40, 4.45, 4.71, 4.71a; Diagnostic Codes 5293 (2002) 5292, 5295 (2003), Diagnostic Codes 5239, 5243 (2010). 5. The criteria for a rating in excess of 10 percent for the Veteran's service-connected left foot disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.71a, Diagnostic Code 5284 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA As a preliminary matter, the Board is required to address the Veterans Claims Assistance Act of 2000 ("VCAA") that became law in November 2000. The VCAA provides, among other things, that VA will make reasonable efforts to notify a claimant of the relevant evidence necessary to substantiate a claim for benefits under laws administered by VA. The VCAA also requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. With respect to the Veteran's claims, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. In this regard, the Board finds that letters dated in March 2004 and May 2008 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These letters notified the Veteran of the evidence and information necessary to substantiate his claims and informed him of his and VA's respective responsibilities in obtaining such evidence. The Board observes that the May 2008 letter specifically notified the Veteran that his claim of entitlement to service connection for a right eye vision disability had previously been denied on the basis that the condition was not considered a disability for VA purposes. As such, the letter stated that the Veteran needed to submit new and material evidence in support of his claim that related to this fact. The RO explained that new evidence was evidence submitted to the RO for the first time; and material evidence was existing evidence that pertained to the Veteran's previous denial of service connection. The RO also informed the Veteran that new and material evidence must raise a reasonable possibility of substantiating the claims. Kent v. Nicholson, 20 Vet App. 1 (2006). The May 2008 letter was not sent prior to the initial adjudication of the claim. However, the Board finds that the belated notice was not be prejudicial to him since the Veteran was provided adequate notice, his claim was readjudicated, and the Veteran was provided a Supplemental Statement of the Case explaining the readjudication of his claim. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007); see also Prickett v. Nicholson, 20 Vet. App. 370 (2006). In addition to the foregoing, the Board observes that the Veteran's service treatment records, VA treatment records, Social Security Administration disability records, and private medical records have been obtained, to the extent possible. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran has also been afforded multiple VA examinations in connection with his claims. The Board finds these VA examinations to be thorough and adequate upon which to base a decision with regard to the Veteran's claims. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and the examination reports have provided the information necessary to fairly adjudicate the Veteran's claim. There is no indication in the record that any additional evidence, relevant to the issues decided herein, is available and not part of the claims file. VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In light of the denial of the Veteran's claim, no disability rating or effective date will be assigned, so there can be no possibility of any prejudice to the Veteran under the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. New and Material Evidence. In the present case, the Veteran seeks to reopen his previously denied claim of entitlement to service connection for right eye vision loss. This claim had been denied by the RO in a February 1984 rating decision. The Veteran did not file a notice of disagreement and the decision became final. 38 U.S.C.A. § 4005(c) (1982); 38 C.F.R. §§ 3.104, 19.129, 19.192 (1983). However, a previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. New and material evidence means evidence not previously submitted to agency decision makers, which bore directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with the evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (as in effect for claims received prior to August 29, 2001). In addition, for the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. at 513. As noted above, the Veteran's claim for service connection for was originally denied in February 1984. At that time, the evidence before the Board included service treatment records that showed visual acuity of the right eye of 20/60 far vision and 20/70 near vision at an examination in May 1980. The Veteran's separation physical in August 1982 showed vision in the right eye of 20/400, A post-service VA examination in November 1983 showed visual acuity of the right eye as 20/100, corrected. He was given a diagnosis of amblyopia, right eye. The Veteran was denied service connection for right eye vision loss (amblyopia), as this disability was found to be a constitutional or developmental abnormality and not a disability under the law. In June 1997, the Veteran submitted a claim indicating that his eyesight had worsened. The Veteran argued that had his eyes been bad he would not have been allowed onto active duty. In March 2002, the Veteran testified at a hearing before the Board, where he argued that his vision was good enough when he entered the military, but decreased enough that the Army felt disability was warranted. However, it is noted that while it was explained to the Veteran why his claim had been denied, the Veteran did not offer any testimony to suggest that the determination that he had a congenital eye disability was incorrect. The evidence received since February 1984, in addition to the Veteran's testimony, consists of private and VA treatment records and a VA eye examination dated in December 2004. The VA treatment records indicate that the Veteran continues to have diminished right eye vision. A July 1985 treatment record indicated that the was treated in the emergency room after he hit his right eye with a screwdriver. At the December 2004 VA examination, the Veteran voiced complaints of defective vision in the right eye. The examiner reviewed the Veteran's claims file, noting that the Veteran had noticed this decrease in visual acuity a few years prior to the examination. The Veteran reported a history of some chemicals falling into his eye in 1982 that were washed away in the emergency room. The Veteran also reported a history of one-time blunt head trauma, but stated that he did not notice a decrease of vision because of that injury. The examiner indicated that there was no current treatment for the right eye. After examination, the Veteran was diagnosed with congenital esotropia with amblyopia. The examiner stated that the Veteran's right eye defective vision was due to congenital amblyopia and esotropia and that it was not related to any injury. It was a congenital abnormality from birth. In this case, the Board finds that the evidence added to the record after the February 1984 RO decision is insufficient to reopen the claim. In this regard, the Board notes that ongoing treatment records are generally insufficient to reopen a claim. See Cornele v. Brown, 6 Vet. App. 59, 62 (1993) (medical evidence which merely documents continued diagnosis and treatment of disease, without addressing other crucial matters, such as medical nexus, does not constitute new and material evidence). In addition, the Board notes that congenital or developmental defects, such as refractive error of the eye, are not disease or injuries within the meaning or applicable legislation. 38 C.F.R. § 3.303(c). Here, the Board is aware of the Veteran's contentions, including in his treatment notes, as well as the lay statements submitted by the Veteran in connection with his claim, but concludes that they are also insufficient to reopen the claim. As a layperson, the Veteran's assertions of medical causation are insufficient to reopen his claim. See Moray v. Brown, 5 Vet. App. 211, 214 (1993). The Veteran can report his observations, but statements as to cause, onset or claimed aggravation must be supported by competent medical evidence. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). This is also true with respect to the lay statements of the Veteran's family and friends. While there is no indication that any such observations are inaccurate, they are not sufficient to establish a diagnosis or nexus to service. In view of the foregoing, the Board finds that the evidence received subsequent to the February 1984 RO decision is not new and material for the purpose of reopening the Veteran's claim. 38 U.S.C.A. §§ 5108, 7105. There has been no additional evidence added to the record that bears on the question of service connection that can be said to bear directly and substantially upon the specific matter under consideration, e.g., the Veteran's specific case, be considered to be neither cumulative nor redundant, or by itself or in connection with the evidence previously assembled be considered so significant that it must be considered in order to fairly decide the merits of the Veteran's claim. Because the Veteran has not fulfilled the threshold burden of submitting new and material evidence to reopen the finally disallowed claims, the benefit-of-the-doubt doctrine is not applicable. As such, the Veteran's claim is not reopened. III. Severance of Service Connection. Service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (the burden of proof being upon the government). When severance of service connection is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons. The claimant will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained. If additional evidence is not received within that period, final rating action will be taken. 38 U.S.C.A. §§ 5109A, 5112(b)(6); 38 C.F.R. § 3.105(d). "Clear and unmistakable error" is defined as a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo v. Brown, 6 Vet. App. 40 (1993). The Court of Appeals for Veterans Claims has propounded a three-prong test to determine whether clear and unmistakable error (CUE) was present in a prior determination. The criteria are: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions in effect at the time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was clear and unmistakable error must be based upon the record and law that existed at the time of the prior adjudication in question. Grover v. West, 12 Vet. App. 109, 111-112 (1999); Russell v. Principi, 3 Vet. App. 310 (1992); Fugo v. Brown, supra at 43-44. Although the same standards for application in a determination of clear and unmistakable error in a prior decision are applied to a determination of whether a decision granting service connection was the product of clear and unmistakable error for the purpose of severing service connection, reviewable evidence in a severance claim is not limited to that which was before the RO in making its initial service connection award. Daniels v. Gober, 10 Vet. App. 474, 480 (1997). With respect to the reduction of the evaluation for degenerative disc disease of the lumbar spine, the Board notes that the provisions of 38 C.F.R. § 3.344(a) and (b) do not apply because the Veteran's 20 percent evaluation had not been in effect for more than five years at the time of the reduction. At the outset, the Board is also satisfied that there were no procedural shortcomings in the RO's reduction of the Veteran's evaluation and severance of service connection. Following the proposed March 2000 severance and rating reduction, the RO notified the Veteran of the proposed severance and reduction in June 2000, informed the Veteran of his right to submit evidence and appear for a personal hearing, and allowed him a period of 60 days required under 38 C.F.R. § 3.105(e) before implementing the reduction in November 2000 which took effect on February 1, 2001. The following Diagnostic Codes are relevant to the Veteran's low back disorder. In this regard, the Board notes that the Veteran filed his claim prior to September 2002. Diagnostic Code 5295, in effect prior to September 26, 2003, provides that a 10 percent evaluation is warranted when the disability is productive of characteristic pain on motion, and a 20 percent evaluation is warranted when the disability is productive of muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in a standing position. A 40 percent rating under this code requires that the disability be productive of severe lumbosacral strain manifested by listing of the whole spine to the opposite side, a positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space or some of the above with abnormal mobility on forced motion. The Veteran's low back condition could also be evaluated under Diagnostic Code 5292, in effect until September 26, 2003, which provided a 10 percent rating for low back disability manifested by slight limitation of motion, a 20 percent rating for low back disability manifested by moderate limitation of motion, and a 40 percent evaluation for low back disability manifested by severe limitation of motion. Finally, the Veteran's disability may also be evaluated under Diagnostic Code 5293, which was in effect prior to September 23, 2002. Pursuant to this code, a 10 percent evaluation was warranted for intervertebral disc syndrome where the disability was mild; a 20 percent evaluation was warranted where the disability is moderate with recurring attacks; and a 40 percent evaluation was warranted where the disability is severe with recurring attacks and intermittent relief. A 60 percent evaluation was warranted where the disability is pronounced with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, and with little intermittent pain. Effective September 23, 2002, VA amended the rating schedule for evaluating intervertebral disc syndrome set out in Diagnostic Code 5293. 67 Fed. Reg. 54345-54349 (2002); now codified at 38 C.F.R. § 4.71a. Under these rating criteria (renumbered as Diagnostic Code 5243 after September 2003) the evaluation of intervertebral disc syndrome (preoperatively or postoperatively) is to be made either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. When rating based on incapacitating episodes, if there are incapacitating episodes having a total duration of at least one week but less than two week during the past 12 months, a minimum 10 percent rating is warranted. If there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent rating is warranted. If there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent rating is warranted. If there are incapacitating episodes having a total duration of at least six weeks during the past 12 months, a 60 percent rating is warranted. Note 1 to 38 C.F.R. § 4.71a, Diagnostic Code 5293 (now Diagnostic Code 5243), effective September 23, 2002, provides that an 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. "Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. Note 2 to 38 C.F.R. § 4.71a, Diagnostic Code 5293 (now Diagnostic Code 5243), effective September 23, 2002, provides that when rating on the basis of chronic manifestations, the orthopedic disabilities will be rated under the most appropriate orthopedic diagnostic code or codes and the evaluation of neurologic disabilities will be done separately using the most appropriate neurologic diagnostic code or codes. Finally, effective on September 26, 2003, additional substantive changes were made to the criteria for evaluating spine disorders. See 68 Fed. Reg. 51454-51458 (August 27, 2003). These later revisions provide a general new rating formula encompassing such disabling symptoms as pain, ankylosis, limitation of motion, muscle spasm, and tenderness. Additionally, associated neurological abnormalities (e.g., bowel or bladder impairment) are now for evaluation separately. These changes are listed under Diagnostic Codes 5235-5243. Under these new regulations, intervertebral disc syndrome, renumbered as Diagnostic Code 5243, may be evaluated under this new general rating formula after September 2003 or under the rating criteria for incapacitating episodes made effective on September 23, 2002, as set forth hereinabove. The new General Rating Formula for Diseases and Injuries of the Spine, effective September 26, 2003, 38 C.F.R. § 4.71a, provides that, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching, in the area of the spine affected by the residuals of injury or disease: a 10 percent evaluation is warranted where there is forward flexion of the thoracolumbar spine greater that 60 degrees but not greater that 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater that 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height, a 20 percent evaluation is warranted where there is forward flexion of the thoracolumbar spine greater that 30 degrees but not greater that 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater that 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, a 30 percent evaluation is warranted where there is forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine, a 40 percent evaluation is warranted where there is unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine, a 50 percent evaluation is warranted where there is unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent evaluation is warranted where there is unfavorable ankylosis of the entire spine. Note 1 to the General Rating Formula for Diseases and Injuries of the Spine provides that any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, is to be evaluated separately under an appropriate diagnostic code. Note 2 to the General Rating Formula for Diseases and Injuries of the Spine provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is 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 the 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. See also Plate V. Note 3 to the General Rating Formula for Diseases and Injuries of the Spine provides that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note 2. Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note 4 to the General Rating Formula for Diseases and Injuries of the Spine provides that each range of motion measurement is to be rounded to the nearest five degrees. Note 5 to the General Rating Formula for Diseases and Injuries of the Spine provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note 6 to the General Rating Formula for Diseases and Injuries of the Spine provides that disability of the thoracolumbar and cervical spine segments are to be separately evaluated, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. The medical evidence in this case consists of post-service treatment records and VA examinations dated in November 1983, July 1985, April 1999, December 2004, April 2006, May 2007, and August 2009. Records from the Veteran's time in the service indicate that the Veteran was in a motorcycle accident in November 1979. There was no indication at the time that his back was injured in the accident. The Veteran reported complaints of back pain in March 1981 and April 1982, while still in service, and an impression of muscle spasm was rendered. An x-ray taken in June 1981 indicated a possible minimal anterior compression of the 8th dorsal vertebra of undetermined etiology. An x-ray taken in April 1982 indicated that there was no significant loss of vertebral body heights or thinning disc spaces. The previously noted anterior wedging of T-8 was noted to probably be just projectional. An x-ray dated in June 1982, taken in connection with complaints of low back pain of one year after motorcycle accident, found no fracture or subluxation. Unfused transverse process of L-1 was noted. In June 1983, the Veteran complained of upper and lower back pain for the past two years. Impression was muscle strain, upper back. A Medical Board report dated in April 1983 showed on the discharge examination that the spine and other musculoskeletal systems were normal. In July 1983, the Veteran complained of back pain. The impression was chronic back pain secondary to muscle strain. At a November 1983 VA examination, the Veteran reported that he had a back problem since a motorcycle accident in November 1979. The Veteran described symptoms of pain and stiffness. An x-ray dated in November 1983 indicated no abnormality throughout the lumbar spine. After examination, the Veteran was indicated to have chronic low back pain by history only, compatible with chronic muscle strain syndrome. In February 1984, the RO granted service connection for chronic low back pain, compatible with chronic muscle strain syndrome with limited flexion range, and evaluated the disability as 10 percent disabling. The Veteran was again examined in July 1985. The Veteran indicated longstanding complaints of low back pain. The Veteran reported that he had been in a motorcycle accident two weeks prior to the examination which caused his back pain to flare up. After examination, the Veteran was given an impression of chronic low back pain, by history only, not clinically apparent and nonlimiting. This disability was indicated to have been recently aggravated by a motorcycle accident, and was found to be compatible with chronic muscle and ligament strain syndrome. X-rays dated in July 1985 indicated normal alignment of the spine and normal height of vertebral bodies and interspaces. Degenerative changes were indicated to be minimal. After the x-rays were taken, the examiner gave a diagnosis of no significant findings. Lumbar spine x-rays dated in June 1995 showed the Veteran's vertebral bodies to be normal in configuration with intervertebral disc spaces maintained. There was no evidence of traumatic, neoplastic or significant arthritic change, and no evidence of spondylolysis or spondylolisthesis. The impression was normal lumbosacral spine. VA treatment records from 1990 to 1996 indicate complaints of and treatment for low back pain. In October 1996, the Veteran sustained an injury to his back at work lifting heavy furniture. A subsequent MRI of the lumbar spine dated in October 1996 showed bulging disc material posteriorly at L4-5. Axial images at this level showed a small disc fragment extending from the midline to the left. The impression was asymmetric disc at L4-5. A February 1997 CT scan indicated left posteriolateral protrusion of L4-5. There was also some mild deformity of the left anterolateral aspect to the thecal sac. An EMG study dated in February 1997 indicated evidence of denervation on the left extensor hallucis longus and extensor dictorum brevis muscle, suggesting mild L5 root lesion on the left side. The rest of the EMG study was considered to be within the range of normal variation. The Veteran underwent bilateral laminectomies and discectomies at L4-5 in April and September 1997. A July 1997 MRI indicated post-surgical changes at the L4-5 level. Some fibrosis was noted in the left side of the spinal canal anterolaterally. A December 1997 MRI of the lumbar spine indicated L4-5 left laminectomy, L4-5 left lateral epidural fibrosis, and L4-5 left lateral disability herniation. At a VA examination in January 1998, the Veteran reported having low back pain on and off since 1979. The Veteran was noted to have re-injured his back in October 1996. Since that time, he indicated that he had experienced continuous pain in the upper thoracic spine and the lower back. The pain was noted to radiate to both legs, along the lateral thigh, lateral lower leg to the feet. The Veteran was noted to occasionally use a cane. The Veteran's back surgeries were noted. On examination, the Veteran was noted to have tenderness of L3, L4, and L5, but no postural or musculature abnormalities. Pain was noted to radiate to both legs, over the lateral aspect. The Veteran was noted to have a scar of about two inches overlying the mid-lumbar spine, which was noted to be normal. Range of motion was found to be forward flexion of 70 degrees, and backward extension of 10 degrees, both with moderate pain. Rotation to the left and right was normal and bending to the left and right was normal. The Veteran was diagnosed with degenerative disc disease of the lumbar spine. The examiner stated that the Veteran's service-connected injury to the lumbosacral spine was as likely as not aggravated by the injury he sustained in October 1996. A January 1998 x-ray indicated mild narrowing of the L4-5 disc space suggesting degenerative disc disease at that level. The remainder of the disc spaces were noted to be intact. Sacroiliac joints were normal and no spondylolisthesis was seen. The impression was probable degenerative disc disease L4-5. A CT scan of the low back in August 1998 found postsurgical changes at L4-5 without defined associated abnormality, and an otherwise negative postmyelographic CT study of the L-spine. An EMG study dated in August 1998 found minimal electromyographic changes in the lower lumbar paraspinous and along L5 root bilaterally, probably secondary to a previous laminectomy. Otherwise the electromyography and nerve conduction studies were considered with the range of normal variation. A CT of the lumbar spine dated in April 1999 indicated surgical changes to L4-L5 without evidence of other abnormality. The Veteran was afforded a VA examination dated in April 1999. The Veteran's medical history was noted. The Veteran reported continuous severe pain. The Veteran also reported constant pain in both legs. The Veteran reported that the pain radiated to the lateral thigh and lateral part of the foot and on the lateral border of the foot and toes bilaterally. The Veteran denied current urinary incontinence. The Veteran also indicated tingling and numbness in the feet and legs. Neurological examination indicated foot dorsiflexors, plantar flexors, and extensor hallucis longus of 4/5 bilaterally. Right lower extremity quadriceps, hamstrings was 3+/5, iliopsoas was 4/5. Lower extremity motor testing was limited due to severe low back pain. Generalized hyperflexia was +1 throughout with the exception of ankle jerks with were not obtainable. Plantar response was flexor bilaterally. The Veteran was diagnosed as status post lumbar spine surgery with residual chronic severe low back pain and bilateral lumbar radiculopathy. In January 2000, a VA opinion was elicited regarding the etiology of the Veteran's herniated disc. After reviewing the Veteran's claims file, the physician stated that "I am of the opinion that the herniated disc in 1996 is due to the on the job accident he had on 10/22/96. The earlier service connected injury in 1979 cannot be expected to result in a herniated disc, which he developed while on the job." A September 2000 emergency room treatment note indicated increasing low back pain radiating into his testicles and lower extremities associated with some numbness, tingling, weakness and loss of sensation in his lower extremities. The Veteran also reported some intermittent urinary incontinence at times. Examination of the spine revealed mild sinus process tenderness with a healed scar. He was noted to have marked decrease of motion due to pain. Sensation of the lower extremities was grossly intact and motor function was grossly within normal limits. Straight leg raising was markedly positive bilaterally. The Veteran was given an impression of acute and chronic low back pain secondary to herniated lumbosacral disc disease. An August 2000 x-ray indicated post surgical changes at L4-5 with disc spaces and what appeared to be grafted bone. This disc space was indicated to be uniformly narrower that its counterparts. The impression was mild degenerative disc disease with anterior spurring at T11 and T12. The Veteran was provided another VA examination in December 2004. The examiner indicated that the Veteran's claims file had been reviewed in connection with the examination and report. The Veteran's medical history was briefly noted. The Veteran was noted to have weakness in both legs and he used a cane. Pain was noted to radiate to both legs. Forward flexion was 70 degrees, backward extension was 25 degrees, right and lateral flexion was 20 degrees each, and right and left lateral rotation was 20 degrees each. After repetition, forward flexion was 60 degrees, backward extension was 20 degrees, right and lateral flexion was 20 degrees each, and right and left lateral rotation was 20 degrees each. Pain was indicated to be 8 throughout. The x-ray report showed previous surgery of L5-S1, left side, and disc surgery at L4-L5. There was also mild anterior lipping of L1 to T12. Neurologic examination indicated weakness of both lower legs 4/5. There was no finding of incapacitation by a doctor in the last year. The Veteran was diagnosed with lumbar disc disease, status post surgery. The examiner stated that "[i]n my opinion his degenerative disc disease and lumbar disc disease is likely related and aggravated secondary to the lower back strain. Also after re-injuring his back in October 1996, his condition [got] worse. The patient has limit [sic] of motion of the lumbar spine. Also he has weakness and fatigability and incoordination of his lower back. Limitation of motion and weakness and severe pain of the lower back in my opinion [is] related to his service-connected condition and also aggravated in 1996 when he was moving a table that reinjured his back. The degree of patient[']s injuries cannot be determined in percentage for service connection versus non service connection without speculation." The December 2004 VA examiner filed an addendum to his opinion dated in May 2005. In this addendum, the examiner stated that he spoke with the Veteran again and reviewed the claims file and spoke with another orthopedic doctor. The Veteran's condition of back strain that he had in service was noted to be an ongoing problem since then. Then, in 1996, the Veteran picked up a table and his condition then got worse. The examiner stated that this is an ongoing problem that got worse with time and development of lumbar spine degenerative joint disease and subsequent injuries. An additional VA examination of the Veteran was conducted in April 2006. The examiner indicated that the Veteran's claims file had been reviewed in connection with the examination and report. The Veteran's medical history was noted. The Veteran reported low back pain since 1979. He reported pain radiating down both legs to the feet. Bladder problems were also indicated. The Veteran's prior surgeries were noted. The Veteran reported continued back and leg pain. It was also noted that the Veteran had not worked since 1996. A review of the Veteran's symptoms included a history of constant urinary incontinence, urinary frequency, urinary urgency, erectile dysfunction, leg or foot weakness, numbness, and parethesias. Also noted was daily fecal incontinence, falls, unsteadiness, urinary retention, and obstipation. The examiner indicated that the Veteran had been evaluated by urology and told that his symptoms were due to low back condition of HNP L4-5. The Veteran reported back flare-ups of 2-3 days that occur weekly and are severe. Pain levels on flare-up were indicated to be 8/10. Precipitating factors were weather change, overexertion, sitting, bending, twisting. Fatigue, stiffness, pain, and spasm of the low back were indicated to be severe. Weakness of the legs was indicated to be moderate. Pain was noted to radiate to both legs, but no bed rest had ever been ordered. There was mild lumbar lordosis, but otherwise no abnormal spinal curvature and no ankylosis of the spine. There was no evidence of thoracic spine sacrospinalis, and moderate evidence of lumbar spine sacrospinalis with moderate spasm, atrophy, guarding, pain with motion, tenderness, and weakness left and right. Muscle spasm was not severe enough to be responsible for abnormal gait or abnormal spinal contour. Range of motion testing of the thoracolumbar spine found flexion of 20 degrees, extension of 10 degrees, right and left lateral flexion of 10 degrees each, and right and left lateral rotation of 10 degrees each, all with pain. Repetitive use showed the same results. Motor examination indicated levels of 4 for right and left hip and knee extension, ankle dorsiflexion, ankle plantar flexion, and great toe extension. Sensory examination indicated findings of 1 for vibration, pain (pinprick), light touch, position sense, on the left. On the right, sensory examination indicated findings of 2 for vibration and position sense, and findings of 1 for pain (pinprick) and light touch. The Veteran was also found to have L5 nerve root change on the left, lateral thigh, calf, foot dorsal, and plantar. On the right, there was L4 nerve root change, lateral thigh to knee. Knee and ankle jerk was 0 left and right, and plantar flexion left and right were normal. Lasegue's sign was negative. X-rays indicated mild degenerative changes, previous surgery with metallic orthopedic insert at L4-5, and multiple hemoclips noted. The Veteran was diagnosed with degenerative disc disease and degenerative joint disease of the lumbar spine L4-5, status post L4-5 anterior fusion. The examiner opined that the degenerative disc disease/herniated disc of the lumbar spine was less likely as not (less than 50-50% probability) due to the low back strain sustained on active duty in 1979. The degenerative disc disease of the lumbar spine was found to have preceded the low back injury of 1996 as a process of aging. The examiner stated that the degenerative disc disease condition may deteriorate into further progression of other discs degenerating with stenosis and hypertrophy of lamina. The examiner stated that the herniated disc problem was caused by lifting at work and required three low back operations. The Veteran was again examined by VA in May 2007. The examiner indicated that the Veteran's claims file had been reviewed in connection with the examination and report. The Veteran's medical history was reviewed for the report. Bladder and bowel complaints were also noted. The Veteran's three back surgeries, in 1996 and 1998, were reported. A review of systems indicated no history of urinary incontinence, fecal incontinence, obstipation, unsteadiness, visual dysfunction, or dizziness. A history of urinary urgency, urinary frequency, erectile dysfunction, numbness, parenthesis, leg or foot weakness, and falls was noted. The Veteran was also noted to have symptoms of fatigue, decreased motion, stiffness, weakness, spasms, and pain, with pain (weakness, numbness, and burning) radiating to the legs and feet. Flare-ups were noted to be moderate, weekly and 1-2 days in duration. Precipitating factors were noted to be pushing, pulling, and lifting. The Veteran reported that he would lose 40% of motion during a flare-up. The examiner indicated that no bed rest has been ordered by the Veteran's physician. The Veteran was noted to have a cane, a walker, and a wheelchair, and he was noted to be unable to walk more than a few years. Objective abnormalities of the thoracic sacrospinalis were noted to be spasm, atrophy, guarding, pain with motion, tenderness, and weakness, left and right. Muscle spasm was not severe enough to be responsible for abnormal gait or abnormal spinal contour. There was kyphosis and lumbar flattening noted, but otherwise no abnormal spinal curvature. Motor examination indicated levels of 5 for right flexion, right hip and knee extension, right ankle dorsiflexion, right ankle plantar flexion, and right great toe extension. Motor examination indicated levels of 4 for left flexion, left hip and knee extension, left ankle dorsiflexion, left ankle plantar flexion, and left great toe extension. Sensory examination indicated findings of 1 for vibration, 1 for pain (pinprick), 1 for light touch, and 2 for position sense, on the right and left. The Veteran was also found to have L5 partial nerve root change on the left, lateral thigh calf. On the right, there was L5 partial nerve root change, lateral thigh and sole. Knee and ankle jerk was 1+ left and right, and plantar flexion left and right were normal. There was no spinal ankylosis. Range of motion testing of the thoracolumbar spine found flexion of 30 degrees, extension of 10 degrees, right and left lateral flexion of 20 degrees each, right lateral rotation of 20 degrees, and right lateral rotation of 10 degrees, all with pain. Repetitive use showed no additional loss of motion. Lasegue's sign was negative. The Veteran was diagnosed with degenerative disc disease and degenerative joint disease of the lumbar spine, L4-5, post fusion status. No medical opinion was requested. Finally, a medical opinion was obtained in August 2009 to address the relationship, if any, between the Veteran's degenerative disc disease and his chronic back pain that was caused by a muscle strain in service. The Veteran was not reexamined. The examiner reviewed the Veteran's claims file and determined that it was clear that the Veteran's degenerative disc disease herniated nucleus pulpous of the lumbar spine was solely caused by his injury in October 1996, that it is clear and unmistakable that the degenerative disc disease of the lumbar spine was not aggravated by the Veteran's chronic low back pain with muscle strain. The examiner stated that the degenerative disc disease onset was much later than his low back strain syndrome. He also explained that the Veteran's degenerative disc disease and his chronic muscle strain were unrelated. Here, the Board notes that service connection for degenerative disc disease of the lumbar spine was initially granted in a May 1998 rating decision. In this decision, the RO noted that the Veteran had recurring attacks of intervertebral disc syndrome. The RO noted that the Veteran had injured his back in 1996 when he lifted some furniture and felt pain. The RO referenced the January 1998 VA examination and the diagnosis of degenerative disc disease, lumbar spine based on the re-injury of the back in October 1996. The Veteran's low back disability was redesignated as degenerative disc disease lumbar spine, chronic low back pain, and the evaluation was increased to 20 percent based on the inclusion of the degenerative disc disease from the October 1996 injury. In this case, the Board finds that the medical evidence outlined above does not establish undebatable error necessary to establish CUE for the purpose of severing service connection. While there is very persuasive medical evidence indicating that the Veteran's degenerative disc disease and herniated disc were the result solely of the October 1996 work injury and had not aggravated the service-connected disability of low back strain, the medical evidence is not one sided. There are other medical opinions outlined above that indicate that the Veteran's low back symptoms, including limitation of motion, weakness, and severe pain are related to his service-connected condition and were aggravated in 1996 when the Veteran reinjured his back. These opinions suggest that the Veteran's ongoing problem got worse with time and the development of lumbar spine degenerative joint disease and subsequent injuries. Taken in its totality, this evidence does not establish that the grant of service connection for degenerative disc disease of the lumbar spine was clearly and unmistakably erroneous. Therefore, the severance of service connection was improper. Furthermore, medical records dated since February 1, 2001 indicate that the Veteran's low back disorder, including the symptoms of his degenerative disc disease, was manifested by symptoms that warrant an evaluation of 20 percent under the applicable criteria for the evaluation of low back disabilities outlined above. As a result, restoration of service connection for degenerative disc disease of the lumbar spine, as well as restoration of the 20 percent rating effective February 1, 2001, is warranted. IV. Increased rating for left foot disability Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. See 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. See 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the question for consideration is the propriety of the initial evaluation assigned after the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged ratings" is required. See Fenderson v. Brown, 12 Vet. App. at 126. In this regard, the Board also acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a Veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). When evaluating musculoskeletal disabilities, VA may consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 are for consideration. Id. However, in that regard, the Board notes that the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The provisions of 38 C.F.R. § 4.40 state that a disability affecting the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. See 38 C.F.R. § 4.40. The Board notes that the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In this case, the Veteran's service-connected left foot condition is evaluated as 10 percent disabling under Diagnostic Code 5284. Under Diagnostic Code 5284, injuries of the foot are evaluated as 10 percent disabling where the condition is assessed as moderate. A moderately severe injury warrants a 20 percent evaluation, and a severe injury warrants a 30 percent evaluation. With actual loss of use of the foot, the evaluation will be 40 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5284. In this regard, the Board notes that the Veteran's disability could also be evaluated under other Diagnostic Codes pertaining to the foot. Diagnostic Codes that have disability evaluations available that exceed the 10 percent include Diagnostic Code 5276, applicable to disabilities related to acquired flatfoot, Diagnostic Code 5278, applicable to acquired claw foot (pes cavus), and Diagnostic Code 5283, applicable to malunion or nonunion of the tarsal or metatarsal bones. See 38 C.F.R. § 4.71a, Diagnostic Codes 5276, 5278, 5283. Diagnostic Code 5276 provides a 10 percent rating for unilateral or bilateral pes planus that is moderate in severity and manifested by symptomatology such as weight- bearing line over or medial to great toe, inward bowing of the tendo achilles, pain on manipulation and use of the feet. A 20 percent rating is assigned for unilateral pes planus manifested by severe symptoms such as objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. Lastly, Diagnostic Code 5276 provides for a 30 percent disability rating for unilateral symptoms that are considered to be pronounced, such as marked pronation, extreme tenderness of the plantar surface of the foot, marked inward displacement and severe spasm of the tendo achilles on manipulation, not improved by orthopedic shoes or appliances. See 38 C.F.R. § 4.71a, Diagnostic Code 5276. Diagnostic Code 5278 provides ratings for acquired claw foot (pes cavus). Slight acquired claw foot is rated noncompensably (0 percent) disabling. Acquired claw foot with the great toe dorsiflexed, some limitation of dorsiflexion at the ankle, definite tenderness under metatarsal heads, bilateral or unilateral, is rated 10 percent disabling. Acquired claw foot with all toes tending to dorsiflexion, limitation of dorsiflexion at the ankle to right angle, shortened plantar fascia, and marked tenderness under the metatarsal heads, is rated 20 percent disabling for unilateral involvement, and 30 percent disabling for bilateral involvement. Acquired claw foot with marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, marked varus deformity, is rated 30 percent disabling for unilateral involvement, and 50 percent disabling for bilateral involvement. 38 C.F.R. § 4.71a, Diagnostic Code 5278. Diagnostic Code 5283 provides ratings based on malunion or nonunion of tarsal or metatarsal bones. Moderate malunion or nonunion of tarsal or metatarsal bones is rated 10 percent disabling; moderately severe malunion or nonunion of tarsal or metatarsal bones is rated 20 percent disabling; and severe malunion or nonunion of tarsal or metatarsal bones is rated 30 percent disabling. A Note to Diagnostic Code 5283 provides that malunion or non-union of tarsal or metatarsal bones with actual loss of use of the foot is rated 40 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5283. Normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees, and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. The medical evidence in this case consists of post-service treatment records and VA examination reports dated in December 2004 and May 2007. X-rays of the Veteran's left ankle and left foot taken in January 1998 show a normal left ankle and a normal left foot. The Veteran was afforded a VA examination dated in December 2004. The examiner indicated that the Veteran's claims file had been reviewed in connection with the examination and report. The Veteran reported that he was in a motorcycle accident in 1979. The examiner indicated that the Veteran fractured the first metatarsal of the left foot in the accident. X-rays of the left foot showed no fracture or calcification, but did show degenerative joint disease. There was no fracture of the left ankle. The Veteran demonstrated full range of motion on testing. The Veteran was diagnosed with mild degenerative joint disease of the left foot. The Veteran's left foot was again examined in May 2007. The examiner indicated that the Veteran's claims file had been reviewed in connection with the examination and report. The Veteran's medical history was noted in the report. Onset of pain was indicated to be 1979 after a motorcycle accident in which the Veteran sustained a fracture of the left foot. He was treated with a cast but no surgery. The Veteran reported current symptoms of pain, stiffness, and weakness. Range of motion testing revealed dorsiflexion of 10 degrees. Tenderness and weakness were noted, but no instability or tendon abnormality was indicated. There was no angulation. There was no associated numbness or palpable click MTO. There was no bunion, hallux valgus or claw toes. There was no heel pain. X-rays indicated mild degenerative changes. The Veteran was diagnosed with left foot with mild degenerative joint disease of the big toe. The condition was noted to have a moderate effect on daily activities. Based on the foregoing, a higher evaluation is not warranted for the Veteran's service-connected left foot condition. The Veteran's symptoms noted above were indicated to be moderate and do not indicate a moderately severe injury under Diagnostic Code 5284. The Veteran's disability is also not productive of severe symptoms such as objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. A higher evaluation is therefore also not warranted under Diagnostic Code 5276. And the Board also finds that the Veteran's disability does not warrant higher evaluations under the other Diagnostic Codes pertaining to the foot, as there is no evidence of acquired claw foot with all toes tending to dorsiflexion, limitation of dorsiflexion at the ankle to right angle, shortened plantar fascia, and marked tenderness under the metatarsal heads, unilateral hallux valgus, unilateral severe hallux rigidus, hammer toes, or malunion or nonunion of tarsal or metatarsal bones. See 38 U.S.C.A. § 4.71a, Diagnostic Codes 5277-78, 5280-83. In addition, as the objective evidence fails to show that the Veteran experiences additional functional loss as a result of his service-connected left foot disability. For example, at the 2007 VA examination, the examiner noted that there was no additional limitation of motion with repetitive motion and pain did not begin until motion ended. As such, the Board finds that the assignment of an increased evaluation on this basis is not warranted. See DeLuca, supra. The Board has considered whether staged ratings are appropriate for the Veteran's service-connected foot disability; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted. The Board has also considered whether an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. This means that initially there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. However, in this case, the medical evidence fails to show anything unique or unusual about the Veteran's foot disability that would render the schedular criteria inadequate. The Veteran's main symptom is pain which is contemplated in the rating assigned. As such, it would not be found that his disability met the "governing norms" of an extraschedular rating. Accordingly, an extraschedular rating is not warranted. Finally, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, as noted above, the Board has referred a claim for a TDIU to the RO for appropriate disposition. ORDER New and material evidence sufficient to reopen a claim of entitlement to service connection for a right eye vision disability has not been received, and the appeal is denied. Restoration of service connection for degenerative disc disease lumbar spine is granted; restoration of the 20 percent disability rating for degenerative disc disease lumbar spine, chronic low back pain, is granted effective February 1, 2001. A disability rating in excess of 10 percent for fracture of the first metatarsal of the left foot with degenerative joint disease is denied. REMAND Based on a review of the Veteran's claims file, the Board finds that the Veteran's claim for an increased rating for his service-connected low back disorder must be remanded for additional development. Although the Board regrets the additional delay, the Board finds that a remand is necessary to ensure that due process is followed, that there is a complete record upon which to decide the issues, and so that the Veteran is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the Board notes that the Veteran has been provided with multiple VA examinations in connection with his low back disability, including relatively recent VA examinations dated April 2006, May 2007, and August 2009. The results of the Veteran's extensive examinations and medical history are outlined in detail above. These examinations indicate that the Veteran has continued back pain associated with limitation of motion, stiffness, weakness, and fatigability. The Veteran has also reported bladder problems, including incontinence, and possible bowel issues as well. He reported that a urology examination related these symptoms to his low back disability. The VA examiners offered no opinion with regard to incontinence as it relates to the Veteran's neurological findings and low back disability. The Veteran has also had complaints of pain radiating to his lower extremities and has been indicated to have L5 nerve root change on the left and right, and L4 nerve root change on the right. In this regard, the Board notes that, under Note 1 of the General Rating Formula, any associated objective neurological abnormalities should be rated separately under an appropriate diagnostic code. This includes neurological abnormalities of the lower extremities and of the bowel and bladder. As the medical evidence indicates that the Veteran may have a bladder or bowel condition that is related to his service-connected low back disability that has not been specifically addressed in a VA examination, and in order to reassess the severity of the Veteran's service-connected low back disability and determine whether the Veteran has separate neurological manifestations in the lower extremities, bladder or bowel related to his service-connected low back disability, the Board finds that the Veteran should be afforded an updated VA examination in connection with this claim. U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Prior to affording the Veteran an additional VA examination, the Board finds that updated records related to the Veteran's medical treatment should be associated with the Veteran's claims file. In this regard, the Board notes that, while the Veteran has been afforded multiple VA examinations, there do not appear to be updated VA treatment records associated with the Veteran's claims file since 2002. The Veteran should also be afforded an opportunity to submit additional medical evidence relevant to his claim that may not be associated with the Veteran's claims file. In this regard, the Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Lewinski, 2 Vet. App. 611, 613 (1992). VA must obtain outstanding VA and private records. See 38 U.S.C.A. § 5103A (b-c); 38 C.F.R. § 3.159(c). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain VA treatment records from October 2002 to the present 2. The Veteran should be afforded a VA examination in order to assess the current nature and severity of his service-connected low back disorder. The Veteran 's claims folder should be made available to the examiner for review in conjunction with the examination. (a) The examiner should identify and express an opinion as to the severity of any orthopedic manifestations (including decreased range of motion and the presence or absence of muscle spasm, guarding or localized tenderness, and their effect upon gait and spinal contour) of the Veteran's disability. The examiner should conduct all indicated tests and studies, to include X-rays and range of motion studies expressed in degrees and in relation to normal range of motion. (b) In rendering this opinion, the examiner should fully describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, the examiner should express any functional loss in terms of additional degrees of limited motion. The examiner should also specifically address whether there is muscle spasm on extreme forward bending; loss of lateral spine motion, unilateral, in a standing position; listing of the whole spine to the opposite side; positive Goldthwaite's sign; or abnormal mobility on forced motion. The examiner should express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the Veteran describes flare-ups), and, if feasible, express this in terms of additional degrees of limitation of motion on repeated use or during flare-ups. If this is not feasible, the examiner should so state. (c) If possible, the examiner should state whether the disability has been productive of any incapacitating episodes, which are defined as periods of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician or treatment by a physician, and if so, the frequency and duration of those episodes. (d) The examiner should also identify any neurological symptoms of intervertebral disc syndrome, to include reflex changes, characteristic pain, and muscle spasm, and express an opinion as to their severity. Any peripheral nerve or nerves involved, resulting from the service-connected disability should be identified and described. Any functional impairment of the extremities due to the disc disease should be identified. The examiner should also specifically address whether there are any associated objective neurological abnormalities of the lower extremities or of bladder or bowel impairment related to the Veteran's service-connected low back disability. Specifically, the VA examiner should opine as to whether it is at least as likely as not that the Veteran has radiculopathy of the right or left lower extremity and/or incontinence or other bladder or bowel dysfunction that is etiologically related to the service-connected low back disorder in any way. In this regard, the examiner is specifically asked to comment of the findings of the multiple VA examinations contained in the Veteran's claims file and indicate the severity of the related neurological abnormalities. The examiner should also indicate the effect the disability has, if any, on the Veteran's current level of occupational impairment. Specifically, the examiner should render an opinion as to whether the service-connected disability causes marked interference with employment, or the need for frequent periods of hospitalization. Additionally, as there has been some indication in the Veteran's claims file that he tends to overreport symptoms, the examiner should provide a statement as to the genuineness of the Veteran's reported symptoms. The examiner must set forth the complete rationale underlying any conclusions drawn or opinions expressed, to include, as appropriate, citation to specific evidence in the record, in a legible report. If the examiner is unable to provide the requested information with any degree of medical certainty, the examiner should clearly indicate that. 3. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed with consideration of all applicable laws and regulations. The RO should also specifically consider whether separate ratings are warranted for associated objective neurologic abnormalities, including, but not limited to bowel or bladder impairment, under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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. 2009). ______________________________________________ MATTHEW W. BLACKWELDER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs