Citation Nr: 1501324 Decision Date: 01/12/15 Archive Date: 01/20/15 DOCKET NO. 12-00 052 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an increased initial rating for right foot metatarsal base stress fracture, with residual chronic pain and plantar fasciitis (right foot disability), rated as 10 percent disabling prior to February 19, 2013, and 30 percent disabling thereafter. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for migraine headaches, to include as secondary to service-connected posttraumatic stress disorder (PTSD). 4. Entitlement to service connection for a lumbar spine disability. 5. Entitlement to service connection for a right hip disability. 6. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Jenkins, Associate Counsel INTRODUCTION The Veteran served on active duty from April 2008 to June 2009. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The issues of entitlement to service connection for a lumbar spine disability, migraine headaches, a right hip disability, and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. For the period prior to February 19, 2013, the Veteran's right foot disability was manifested by pain on use, extreme tenderness of the plantar surface, decreased longitudinal arch height on weight bearing, and moderate foot injury; there was no objective evidence of swelling on use, characteristic calluses, marked deformity, marked pronation of the foot, weight-bearing line falling over or medial to the great toe, inward bowing of the Achilles tendon, or marked inward displacement or severe spasm of the Achilles' tendon on manipulation. 2. For the period beginning February 19, 2013, the Veteran's right foot disability manifested in a severe right foot injury characterized by chronic pain and an antalgic gait; it did not manifest with loss of use of the right foot. 3. The Veteran does not have a hearing loss disability for VA purposes. CONCLUSIONS OF LAW 1. For the period prior to February 19, 2013, the criteria for a rating in excess of 10 percent for the Veteran's right foot disability have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5276-5284 (2014). 2. For the period beginning February 19, 2013, the criteria for a rating in excess of 30 percent for the Veteran's right foot disability have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5276-5284 (2014). 3. The criteria for establishing service connection for a bilateral hearing loss disability have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.385 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As required by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist Veterans in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159(b) (2014). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2014); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, the United States Court of Appeals for Veterans' Claims (the Court) held that VA must inform the Veteran 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 Veteran is expected to provide. 18 Vet. App. 112, 120-21 (2004). In an October 2009 letter, VA satisfied its duty to notify the Veteran. Specifically, the letter notified the Veteran of the information and evidence necessary to substantiate the claims; information and evidence that the VA would seek to provide; information and evidence that the Veteran was expected to provide; and about the process by which disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has satisfied its duty pursuant to 38 U.S.C.A § 5103A (West 2014) and 38 C.F.R. § 3.159(c) (2014) to assist the Veteran. The Veteran's service treatment records and VA treatment records are of record. VA provided the Veteran with VA foot examinations in February 2010, July 2012, and February 2013, and a VA audiological examination in February 2010. The examination reports reflect that the VA examiners and audiologist reviewed the Veteran's claim file, conducted appropriate examinations, rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record, and provided sufficient information to evaluate the Veteran's disabilities. The Board finds that the VA examination reports are adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Based on the foregoing, the Board finds that VA has satisfied its duties to notify and assist under the governing law and regulation. The Board will therefore review the merits of the Veteran's claims, de novo. Analysis Initially, the Board notes it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to each claim. Increased Rating for a Right Foot Disability Disability evaluations are determined by the application of a schedule of ratings, which is based on average industrial impairment. 38 U.S.C.A. § 1155 (West 2014). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2014). The primary concern in a claim for an increased evaluation is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Additionally, a staged rating is warranted if the evidence demonstrates distinct periods in which a service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal. A March 2010 rating decision granted service connection for right foot plantar fasciitis, status post stress fractures, with residual chronic pain on the dorsum and plantar aspects of the foot, and rated it as 10 percent disabling under Diagnostic Code 5299-5276. 38 C.F.R. § 4.71a, Diagnostic Code 5299-5276 (2014). An October 2013 rating decision increased the Veteran's rating to 30 percent disabling under Diagnostic Codes 5276-5284. 38 C.F.R. § 4.71a, Diagnostic Code 5276-5284 (2014). Under Diagnostic Code 5276, a noncompensable evaluation is warranted for pes planus with mild symptoms such as those that are relieved by a built-up shoe or arch support. A 10 percent evaluation is warranted for moderate symptoms such as the weight-bearing line over or medial to the great toe, inward bowing of the tendo Achilles, or pain on manipulation and use of the feet, either bilateral or unilateral. A 20 percent evaluation is warranted for unilateral severe symptoms, and a 30 percent evaluation is warranted for bilateral severe symptoms such as objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, or characteristic callosities. The maximum schedular evaluations of 30 percent for unilateral and 50 percent for bilateral pes planus are warranted for pronounced symptoms such as marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achilles on manipulation, or symptoms not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2014). Under Diagnostic Code 5284, a 10 percent rating is provided for a "moderate" foot injury. 38 C.F.R. § 4.71a, Diagnostic Code 5284 (2014). A 20 percent rating is provided for a "moderately severe" foot injury. Id. A 30 percent evaluation is provided for a "severe" foot injury. Id. Additionally, the Note to Diagnostic Code 5284 indicates that a maximum 40 percent rating will be assigned for actual loss of use of the foot. Id. The words "slight," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Id. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2014). At the February 2010 VA examination, the Veteran reported that she had bilateral foot pain, but that her right foot was markedly worse than her left. She noted that she had pain on the dorsum of her forefoot and along the medial arch. She stated that she was no longer able to run because doing so caused sharp, shooting pain in her medial arch area. She reported having daily flare-ups involving her right foot. The Veteran stated that she sometimes had throbbing discomfort in her right foot even when she was off her feet, and that she had significant cramping and sharp pain that radiated up and down her right foot, particularly along the plantar surface. She stated that she had intermittent swelling that occurred 2-3 times per week and required her to rest and elevate her feet. She denied taking any medication for her foot pain, but noted she had been issued orthotics during her military service. However, she reported that her orthotics had fallen apart and she no longer wore them. She stated that she could stand or walk for approximately 20-30 minutes, but then required a rest because of foot, back, and hip pain. She also noted numbness and tingling in her first metatarsal. The examiner noted that the Veteran was able to ambulate into the examination room without difficulty, that her gait was normal, and that she did not use any assistive devices. On physical examination, the Veteran had mild pedal edema, tenderness to palpation on the dorsum of her right foot along the 1st and 2nd metatarsals, tenderness to palpation in her medial arch area, and pain in the bottom of her foot with dorsiflexion. She had mild erythema, but no callosities or skin breakdown was evident. No abnormal wear was evident on her shoes. The examiner noted that x-ray testing was not conducted because the Veteran was pregnant at the time of her examination. The examiner diagnosed the Veteran with right foot plantar fasciitis, status post stress fractures, with residual chronic pain on the dorsum and plantar aspects of her foot. At her initial VA intake in April 2011, the Veteran reported that she had pes planus with intermittent foot swelling. Upon examination of her extremities, her pulses were intact and no cyanosis, clubbing, or edema was evident. VA treatment records in February 2012, April 2012, and July 2012 noted that the Veteran reported foot pain. However, no pertinent physical findings were recorded. A March 2012 VA radiology report noted that right foot x-rays revealed mild metatarsus primus varus with hallux valgus and minimal degenerative changes in the dorsal talonavicular joint. At her July 2012 foot examination, the Veteran was diagnosed with bilateral metatarsalgia. The examiner noted that there was no evidence of Morton's neuroma, hammer toe, hallux valgus, hallux rigidus, weak foot, pes cavus, or malunion or nonunion of the tarsal or metatarsal bones. The examiner noted that the Veteran had a moderate bilateral foot injury. The examiner noted that the Veteran had bilateral pes planus, but stated her posture and gait were within normal limits. The examiner noted that bilaterally the Veteran had pain on use, extreme tenderness of the plantar surface, and decreased longitudinal arch height on weight bearing. There was no evidence of pain on manipulation, indication of swelling on use, characteristic calluses, objective evidence of marked deformity, marked pronation of the foot, weight-bearing line over or medial to the great toe, inward bowing of the Achilles tendon, or marked inward displacement or severe spasm of the Achilles' tendon on manipulation. The Veteran was noted to use orthotic shoe inserts, which she said relieved her symptoms. The examiner opined that the pes planus prohibited prolonged standing or walking. At her February 2013 VA examination, the Veteran was diagnosed with right metatarsalgia and a severe right foot injury. With regard to the foot injury, the examiner noted that the Veteran had stress fractures in her foot and tibia at the ankle, which resulted in an antalgic gait and chronic pain. The examiner noted there was no evidence of hammertoe, hallux rigidus, pes cavus, mal union or nonunion of tarsal or metatarsal bones, or weak foot. The examiner opined that the Veteran's foot condition limited her to sedentary work that allowed her to change positions every 15 minutes and did not require bending, stooping, pushing, pulling, carrying, or twisting. The examiner further noted that the VA established diagnosis of status post right foot metatarsal base stress fracture with chronic pain and plantar fasciitis should be changed to indicate chronic pain with less activity secondary to chronic foot and ankle pain post-stress fracture. After reviewing all the evidence of record, the Board finds that for the period prior to February 19, 2013, the evidence is against a finding that the Veteran's right foot disability warrants a rating in excess of 10 percent. Although the Veteran's foot disability manifested with pain on use, extreme tenderness of the plantar surface, and decreased longitudinal arch height on weight bearing, there was no objective evidence of swelling on use, characteristic calluses, marked deformity, marked pronation of the foot, weight-bearing line falling over or medial to the great toe, inward bowing of the Achilles tendon, or marked inward displacement or severe spasm of the Achilles' tendon on manipulation. Accordingly, the Veteran's right foot disability did not more nearly approximate the rating criteria for severe pes planus. 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2014). The Board notes that a March 2012 VA radiology report noted right foot hallux valgus. However, a rating in excess of 10 percent is not permitted under Diagnostic Code 5280. 38 C.F.R. § 4.71a, Diagnostic Codes 5280 (2014). Accordingly, a rating in excess of 10 percent is not warranted for the Veteran's hallux valgus. With regard to the other diagnostic codes pertaining to the foot, no reasonable basis exists for assigning a higher rating under another diagnostic code as the Veteran does not have weak foot, claw foot, hammertoe, or malunion or nonunion of the tarsal or metatarsal bones. 38 C.F.R. § 4.71a, Diagnostic Codes 5277 to 5283 (2014). Additionally, the Board considered whether a higher rating was available under Diagnostic Code 5284. However, the July 2012 examiner opined that the Veteran's foot disability resulted in a moderate foot injury. In the absence of evidence of a moderately severe or severe foot injury, a rating in excess of 10 percent is not warranted under Diagnostic Code 5284. 38 C.F.R. § 4.71a, Diagnostic Code 5284 (2014). For the period beginning February 19, 2013, the evidence is against finding that the Veteran's right foot disability warrants a rating in excess of 30 percent. Initially, the Board notes that the maximum schedular rating for a unilateral foot disability under Diagnostic Codes 5277 to 5283 is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Codes 5277 to 5283 (2014). Accordingly, application of those diagnostic codes would not result in a higher rating. With regard to Diagnostic Code 5284, the maximum 40 percent rating is assigned only for actual loss of use of the foot. Id. As there is no evidence that the Veteran had actual loss of use of her right foot, a rating in excess of 30 percent is not warranted. Id. For these reasons, the Board determines that the preponderance of the evidence is against granting a rating in excess of 10 percent prior to February 19, 2013, and against granting a rating in excess of 30 percent thereafter. Bilateral Hearing Loss Service connection may be established for a disability resulting from diseases or injuries, which are clearly present in service, or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2014). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). The threshold question that must be addressed is whether the Veteran actually has the disability for which service connection is sought, specifically a hearing loss disability. In the absence of proof of a present disability, there is no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As detailed below, there is also insufficient evidence of a hearing loss disability for VA purposes at any point during the claim period or shortly before the claim was filed. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Here, the evidence is against finding that the Veteran has a current hearing loss disability for VA purposes. Pursuant to 38 C.F.R. § 3.385 (2014), hearing loss will be considered to be a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz (Hz) is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent. Id. The relevant evidence of record includes a February 2010 VA audiological examination, which fails to show hearing impairment for VA purposes. Audiometric testing revealed the following pure tone thresholds in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 10 15 5 LEFT 15 15 15 10 5 Speech recognition scores using the Maryland CNC were 100 percent bilaterally. The foregoing VA audiological report provides the only audiometric and speech recognition findings during the period on appeal, and those findings do not show a hearing disability for VA purposes. 38 C.F.R. § 3.385 (2014). See also Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007) (upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes). While the Veteran may be competent to state that she has hearing difficulty, as a layperson, she is not competent to diagnose a hearing loss disability as defined by 38 C.F.R. § 3.385 (2014). See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, determining whether there is a hearing loss disability for VA purposes requires specialized testing, and there is no indication that the Veteran has any audiological training. Moreover, the February 2010 VA audiological examination was conducted by an audiologist, included a review of the claims file, considered the Veteran's lay statement, and included audiometric testing that was deemed by the examiner to have produced valid results. Thus, the Board affords the examination report significantly more probative weight than the Veteran's lay assertions as to the presence of her claimed hearing loss disability. As the most probative evidence of record reflects that the Veteran does not have a current hearing loss disability, the claim must be denied and no further discussion concerning in-service incurrence, nexus, or presumptive service connection is needed. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the preponderance of the evidence is against entitlement to service connection for a bilateral hearing loss disability, the doctrine of reasonable doubt does not apply. See 38 U.S.C.A. § 5107(b) (2014); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Extraschedular Consideration The Board has also considered whether the Veteran is entitled to referral for extraschedular consideration for her right foot disability. Thun v. Peake, 22 Vet. App. 111 (2008). If there is an exceptional or unusual disability picture, the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating to the Chief Benefits Director or the Director, Compensation and Pension Service. 38 C.F.R. § 3.321(b)(1) (2014). Here, the applicable rating criteria more than reasonably describe the Veteran's disability and symptomatology. The Veteran has not submitted evidence indicating that her disabilities or the difficulties flowing from her service-connected disabilities constitute "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b) (2014). The Veteran reported that her right foot disability manifested in pain and tenderness. These symptoms are contemplated in the General Rating Formula and provided for in the assigned rating. Additionally, the Board observes that a higher schedular rating is available, but the facts do not indicate that the Veteran's right foot disability warrants a higher rating. Thus, her disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is adequate. See Thun, 22 Vet. App. at 115. Finally, the Board notes that under Johnson v. McDonald, 762 F.3d 1362 (2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, in this case, after applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition. Moreover, at no time during the period under consideration has the Veteran asserted that the schedular criteria for her service-connected disabilities do not adequately describe or reflect her symptomatology. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. ORDER For the period prior to February 19, 2013, a rating in excess of 10 percent for a right foot disability is denied. For the period beginning February 19, 2013, a rating in excess of 30 percent for a right foot disability is denied. Entitlement to service connection for a bilateral hearing loss disability is denied. REMAND A review of the record indicates that further development is necessary prior to adjudicating the Veteran's remaining claims. With regard to the Veteran's claims of entitlement to service connection for a lumbar spine disability and migraine headaches, the Board notes that the Veteran was provided a VA general medical examination in February 2010. Although the Veteran was diagnosed with a lumbosacral musculoskeletal strain with acute spasm, acute on chronic musculoskeletal strain, with limitation of range of motion and migraine headaches, etiological opinions were not provided. Accordingly, the Board finds that the February 2010 examination report is inadequate for adjudicating the claims. Additionally, the Board notes that private treatment records from Evans Army Community Hospital Robinson Family Medicine Clinic, which predate the Veteran's enlistment, indicate that she was treated for headaches and low back pain. Specifically, a June 2007 treatment record noted that the Veteran reported lower back pain and numbness for several weeks. Additionally, a March 2008 treatment record noted that the Veteran was assessed with migraines and prescribed rizatriptan. Accordingly, on remand the Veteran should be provided another VA examination to assess the nature and etiology of her migraine headache disorder and lumbar spine disability. With regard to the Veteran's claims for service connection for a right hip disability and entitlement to TDIU, in April 2013, the Veteran filed a timely notice of disagreement with the March 2013 rating decision that confirmed and continued a prior denial for service connection for a right hip disability and entitlement to TDIU. The filing of a notice of disagreement places a claim in appellate status. The failure to issue a statement of the case (SOC) in such a circumstance renders a claim procedurally defective and necessitates a remand. See 38 C.F.R. §§ 19.9, 20.200, 20.201 (2014). To date, the AOJ has not issued a SOC addressing the Veteran's claims for entitlement to service connection for a right hip disability and entitlement to TDIU. Under these circumstances, the Board must remand these claims to the AOJ to issue a SOC. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The Board notes, however, that these claims will be returned to the Board for appellate consideration after issuance of the SOC only if an appeal is perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims folder VA treatment records from August 2014 to the present. All attempts to obtain these records must be documented in the claims file. 2. Provide the Veteran with a SOC addressing the pending appeals for entitlement to service connection for a right hip disability and entitlement to TDIU. The Veteran and her representative are reminded that to vest the Board with jurisdiction over those issues, a timely substantive appeal must be filed. 38 C.F.R. § 20.202 (2014). 3. Thereafter, provide the Veteran a VA examination to assess the nature and etiology of the Veteran's migraine headaches. The claims file and a copy of this remand must be made available for review, and the examination report must reflect that review of the claims file occurred. The examiner should opine: a. Whether the evidence clearly and unmistakably establishes that the Veteran's migraine headache disorder preexisted service. The examiner should address the October 2007, January 2008, and March 2008 treatment records noting that the Veteran reported headaches and was prescribed rizatriptan. If the Veteran's headache disorder pre-existed service, did it worsen in service and, if so, was it clearly and unmistakably not aggravated by service. In other words, was any increase clearly and unmistakably due to the natural progression of the disability? The examiner is instructed that clearly and unmistakably requires that the evidence be obvious, manifest, and undebatable. Cotant v. Principi, 17 Vet. App. 116 (2003). Aggravation is defined as a permanent worsening beyond the natural progression of the disease or disability. b. Whether it is at least as likely as not (i.e. a 50 percent probability or more) that the Veteran's migraine headache disorder was caused or aggravated by her service-connected PTSD. c. If the examiner finds that the evidence does not clearly and unmistakably establish that the Veteran's migraine headache disorder preexisted service or finds that it did preexist service but that it was not clearly and unmistakably not aggravated by service, he or she should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's migraine headache disorder had its onset in service or is otherwise related to her military service. In formulating the opinion, the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence, both for and against the claim, is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. All opinions should be accompanied by a complete rationale. If the examiner cannot provide any of the requested opinions without resorting to mere speculation, he or she must so state and must explain why he or she cannot provide the opinion without resorting to mere speculation. 4. Thereafter, provide the Veteran a VA examination to assess the nature and etiology of any lumbar spine disability, to include lumbosacral musculoskeletal strain and degenerative disc disease. The claims file and a copy of this remand must be made available for review, and the examination report must reflect that review of the claims file occurred. The examiner should: a. Identify any and all current diagnosable lumbar spine disabilities. In doing so, the examiner should address the March 2012 VA treatment record assessing the Veteran with possible degenerative disc disease of the L5-S1. b. For any diagnosed lumbar spine disability, state whether the evidence clearly and unmistakably establishes that the Veteran's lumbar spine disability preexisted service. The examiner should address the June 2007 treatment record noting that the Veteran had reported lower back pain and numbness for several weeks and the April 2009 service treatment record noting that the Veteran reported low back pain since a childhood trampoline accident. If the Veteran's low back disability pre-existed service, did it worsen in service, and if so, was it clearly and unmistakably not aggravated by service. In other words, was any increase clearly and unmistakably due to the natural progression of the disability. The examiner is instructed that clearly and unmistakably requires that the evidence be obvious, manifest, and undebatable. Cotant v. Principi, 17 Vet. App. 116 (2003). Aggravation is defined as a permanent worsening beyond the natural progression of the disease or disability. c. If the examiner finds that the evidence does not clearly and unmistakably establish that any diagnosed lumbar spine disability preexisted service or finds that it did preexist service but that it was not clearly and unmistakably not aggravated by service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any lumbar spine disability had its onset in service or is otherwise related to military service. In formulating the opinion, the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence, both for and against the claim, is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. All opinions should be accompanied by a complete rationale. If the examiner cannot provide any of the requested opinions without resorting to mere speculation, he or she must so state and must explain why he or she cannot provide the opinion without resorting to mere speculation. 5. Finally, after any other development the AOJ should deem necessary, readjudicate the claims. If any benefit sought on appeal remains denied, provide a Supplemental SOC to the Veteran and his representative, and an appropriate period in which to respond. Then, if warranted, return the appeal to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 2014). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs