Citation Nr: 0534210 Decision Date: 12/19/05 Archive Date: 12/30/05 DOCKET NO. 99-04 682 ) DATE MERGED APPEAL ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased rating for postoperative bilateral pes planus with hallux valgus, currently evaluated as 30 percent disabling. 2. Entitlement to an increased rating for residuals of a neck and upper back strain with disc space narrowing at C5, currently evaluated as 30 percent disabling. 3. Entitlement to an increased (compensable) rating for bilateral pterygium with history of macular hole of the right eye. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Sean Ravin, Attorney WITNESS AT HEARING ON APPEAL Craig Bash, M.D. ATTORNEY FOR THE BOARD Milo H. Hawley, Senior Counsel INTRODUCTION The veteran had active service from September 1972 to September 1976 and from February 1979 to February 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 1997 and September 2004 decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The December 1997 RO decision continued a 10 percent evaluation for the veteran's upper back and cervical spine disability, a noncompensable evaluation for his bilateral eye disability, and a 10 percent evaluation for bilateral pes planus. A January 1999 RO decision granted a 30 percent evaluation for bilateral pes planus effective May 12, 1997, and a June 2002 RO decision granted a 30 percent evaluation for the upper back and cervical spine disability effective May 12, 1997. A March 2003 Board decision denied the veteran's appeal for increased ratings for pes planus with hallux valgus and bilateral pterygium with history of macular hole of the right eye. (The claim for a higher rating for an upper back and cervical spine disability was remanded to the RO for further development at that time.) The veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In November 2003, the Court granted a joint motion vacating and remanding the Board's March 2003 decision. The veteran also perfected an appeal of a September 2004 RO decision that denied his claim for a TDIU. In June 2004, the Board remanded the appeal for additional development. The purpose of that remand was met. The veteran was afforded a personal hearing held in Washington, D.C. before the undersigned in September 2005. A transcript of that hearing is of record. The final preliminary matter concerns the veteran's claim for a rating in excess of 30 percent for his service-connected residuals of an upper back and neck strain with disc disease of the cervical spine and his claim for a TDIU. The decision that follows grants an increased rating of 40 percent for the veteran's neck strain with disc disease of the cervical spine. The question remains whether the veteran's upper back strain warrants a separate compensable rating. As the claim for a separate compensable rating for an upper back disability, to include whether service connection is in effect for disease of the thoracic spine, is intertwined with the claim for a TDIU, adjudication of the latter claim must be deferred pending completion of the development of the raised issue noted above. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). These matters are addressed in the remand appended to this decision. FINDINGS OF FACT 1. All evidence necessary to decide the claims addressed in this decision has been obtained; the RO has notified the veteran of the evidence needed to substantiate the claims and obtained all relevant evidence designated by the veteran. 2. The veteran's service-connected postoperative bilateral pes planus with hallux valgus is manifested by objective evidence of callosities and pain on manipulation and use, but without evidence of pronounced flat feet with marked pronation, extreme tenderness of the plantar surfaces, marked inward displacement, or severe spasm of the tendo achillis on manipulation; his unilateral hallux valgus has not been treated with surgical resection of the metatarsal head and the deformity is not so severe as to be equivalent to an amputation of the great toe. 3. The veteran's service-connected neck strain with degenerative disc disease of the cervical spine is manifested by severe limitation of motion of the cervical spine and severe but not pronounced intervertebral disc syndrome; it is not productive of incapacitating episodes of symptoms necessitating bedrest prescribed by a physician, ankylosis of the cervical spine, muscle spasm or guarding severe enough to result abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; or any additional associated objective neurologic abnormalities warranting a separate compensable rating. 4. The veteran's corrected visual acuity is 20/20 bilaterally. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for bilateral pes planus with hallux valgus have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, Part 4, Diagnostic Codes 5276, 5280 (2005). 2. The criteria for a 40 percent rating, but no more than 40 percent, for residuals of a neck strain with disc space narrowing at C5 have been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.71, 4.71a, Diagnostic Codes 5290 (2002), 5293 (before September 23, 2002 and from that date until September 26, 2003), Diagnostic Codes 5237, 5243 (2005). 3. The criteria for a compensable evaluation for bilateral pterygium with history of macular hole of the right eye have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, Part 4, Diagnostic Code 6034 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act VA has the duty to assist a veteran in the development of facts pertinent to his claim. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5102, 5103, 5013A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2005). This law eliminated the concept of a well-grounded claim, redefined the obligations of VA with respect to the duty to assist, and provides an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. 38 U.S.C.A. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159(b)(c). The United States Court of Appeals for Veterans Claims' (Court's) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. In this case, however, the initial unfavorable AOJ decision was already decided and appealed by the time the VCAA was enacted. The Court acknowledged in Pelegrini, at 120, that where, as here, the § 5103(a) notice was not mandated at the time of the initial RO decision, the RO did not err in not providing such notice. Rather, the appellant has the right to content complying notice and proper subsequent VA process. The appellant was provided VCAA notice prior to the September 2004 RO decision denying his claim for a TDIU. As to the other issues on appeal, the Board finds that any defect with respect to the timing of the VCAA notice requirement was harmless error. Although the notice was provided to the veteran after the initial adjudication of his increased rating claims, the veteran has not been prejudiced thereby. The RO obviously could not inform the veteran of law that did not exist. Moreover, in Pelegrini II, the Court also made it clear that where, as in this case, notice was not mandated at the time of the initial RO decision, the RO did not err in not providing such notice complying with section 5103(a); § 3.159(b)(1) because an initial RO decision had already occurred. See also VAOPGCPREC 7-2004. The Board finds that the veteran has been provided VCAA content complying notice and proper subsequent VA process. The VCAA notice was provided to him via a July 2004 letter, as well a June 2002 supplemental statement of the case and March 2005 statement of the case which provided the veteran with VCAA implementing regulations. The Pelegrini Court held, in part, that a VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) Inform a claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence that the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. 18 Vet. App. at 120-121. The content of the July 2004 letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The veteran was advised to submit any evidence that he had that was relevant to his claims. He was advised of what evidence VA would attempt to provide and what evidence he should provide, as well as what was necessary to substantiate his claims. He has been provided with every opportunity to submit evidence and argument in support of his claims and to respond to VA notices. For these reasons, to decide the appeal would not be prejudicial error to the veteran. All that VCAA requires is that the duty to notify is satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). The veteran was notified and aware of the evidence needed to substantiate his claims, and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). With respect to the VA's duty to assist, VA treatment records have been obtained. The veteran has been afforded multiple VA examinations and a personal hearing. The examinations, along with outpatient treatment records, provide sufficient findings upon which to determine the severity of the veteran's service-connected disabilities at issue. Another examination or medical opinion is not necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Testimony has been received from a private physician, as well as a letter from that private physician. There is no indication that any additional relevant evidence exists. The veteran indicated, in a June 2002 statement, that he had no additional evidence to submit at that time. Thus, the Board finds that VA has satisfied the duty to assist the veteran. In the circumstances of this case, additional efforts to assist or notify him in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). VA has satisfied its duty to inform and assist the veteran at every stage in this case. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of the claims. In accordance with 38 C.F.R. §§ 4.1, 4.2, and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the veteran's service-connected disabilities. The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. The Board is of the opinion that this case presents no evidentiary considerations, except as noted below, that would warrant an exposition of the remote clinical history and findings pertaining to the disabilities at issue. Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Regulations require that where there is a question as to which of two evaluations is to 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. Pes Planus The veteran's bilateral pes planus with hallux valgus has been evaluated under the provisions of Diagnostic Code 5276 of the Rating Schedule. Diagnostic Code 5276 provides that bilateral pes planus that is severe with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, will be evaluated as 30 percent disabling. Where bilateral pes planus is pronounced with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, with no improvement by orthopedic shoes or appliances, a 50 percent evaluation will be assigned. Under this provision for rating hallux valgus, a 10 percent rating for a unilateral hallux valgus is warranted only where operated with resection of the metatarsal head or where the deformity is so severe as to be equivalent to an amputation of the great toe. 38 C.F.R. § 4.71a, Code 5280. VA treatment records do not reflect any pertinent findings relative to evaluating the veteran's bilateral pes planus with hallux valgus. The reports of June 1998 and September 1999 VA examinations reflect that the veteran reported that his feet hurt. Calluses were observed on the left foot. An examiner commented that the calluses appeared to be bothersome but were not what one would term greatly enlarged calluses. It was indicated that the bilateral pes planus was severe, but the veteran had an ordinary flexible flatfoot and it was believed that, with appropriate padding, his feet were okay for weight bearing and working. The record indicates that the veteran does have calluses on the left foot. However, there is no competent medical evidence indicating that the veteran has extreme tenderness of the plantar surfaces of the feet or marked inward displacement and severe spasm of the tendo achillis on manipulation that is not improved by orthopedic shoes or appliances. Neither is there any indication of swelling on use. Rather, the competent medical evidence indicates that there would be improvement with appropriate padding such as an orthopedic shoe or appliance. In the absence of any competent medical evidence that would support a 50 percent evaluation under Diagnostic Code 5276, a preponderance of the evidence is against an evaluation greater than the 30 percent that has been assigned. There is medical or surgical evidence to show that the veteran's unilateral hallux required surgical resection of the metatarsal head, nor is there medical or X-ray evidence to show that the deformity is so severe as to be equivalent to an amputation of the great toe. 38 C.F.R. § 4.71a, Code 5280. Cervical Spine The VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons used to support the conclusion. See Schafrath. These regulations include, but are not limited to, 38 C.F.R. § 4.1, that requires that each disability be viewed in relation to its history and that there be an emphasis placed upon the limitation of activity imposed by the disabling condition, and 38 C.F.R. § 4.2 which requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran's working or seeking work. Moreover, 38 C.F.R. § 4.10 states that, in cases of functional impairment, evaluations are to be based upon lack of usefulness, and medical examiners must furnish, in addition to etiological, anatomical, pathological, laboratory and prognostic data required for ordinary medical classification, a full description of the effects of the disability upon a person's ordinary activity. This evaluation includes functional disability due to pain under the provisions of 38 C.F.R. § 4.40. Special consideration is give to factors affecting function and joint disabilities under 38 C.F.R. § 4.45. In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court held that in evaluating a service-connected joint disability, the Board erred in not adequately considering functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. When it is not possible to separate symptoms of nonservice- connected disabilities from symptoms of service-connected disabilities, 38 C.F.R. § 3.102 (2005) requires that all signs and symptoms be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998). The Board notes that while this appeal was pending, the applicable rating criteria for intervertebral disc disease, 38 C.F.R. § 4.72, Diagnostic Code 5293, were revised effective September 23, 2002. See 67 Fed. Reg. 54,345 (Aug. 22, 2002). Further, the remaining spinal regulations were amended, effective in September 2003. See 68 Fed. Reg. 51,454 (Aug. 27, 2003). The timing of this change requires the Board to first consider the claim under the appropriate old regulations and. thereafter, the Board must analyze the evidence dated from the effective date of the new regulations and consider whether a higher rating than the previous rating is warranted. See VAOPGCPREC 7-2003; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Under the diagnostic codes in effect prior to September 2002 and the change in September 2003, Diagnostic Code 5290 provided that the maximum rating for limitation of motion of the cervical spine (severe) warranted a 30 percent evaluation. Diagnostic Code 5293 provided that for intervertebral disc syndrome, a 20 percent evaluation required moderate intervertebral disc syndrome with recurring attacks, a 40 percent evaluation required severe intervertebral disc syndrome with recurring attacks with intermittent relief, and a 60 percent evaluation required persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, with little intermittent relief. The reports of July 1997 and September 1999 VA examinations reflect that the veteran reported constant neck pain with flareups occurring on a continuing basis. The veteran reported a numbness in his hands and indicated that he had begun to drop things. There was global cervical and thoracic tenderness. However, there was no visible atrophy and musculature appeared to be well developed. Range of motion was more restricted during the 1999 examination with extension to 30 degrees, flexion to 20 degrees, and rotation to 30 degrees to the right and 45 degrees to the left, with movements limited by pain. The diagnoses included degenerative cervical disc. VA treatment records dated from September to November 1999 reflect that the veteran had chronic neck pain with exquisite tenderness. His right grip strength varied from 60 pounds to 109 pounds and his left grip strength varied from 110 to 115 pounds. The report of an August 1999 X-ray of the veteran's cervical spine reflects that C3-4 disc spaces were narrowed slightly and the C5-6 disc space was more narrow than the one above. The report of an August 1999 VA EMG indicates no evidence of right arm radiculopathy, but peripheral neuropathy involving motor and sensory fibers. There was right trapezius muscle spasm. The reports of June 2003 and August 2004 VA examinations reflect that at the time of the latter examination, the veteran's range of motion of the cervical spine was limited to 5 degrees in all planes. There was some spasm in the rhomboidal area paraspinally. The diagnoses included degenerative disc disease of the cervical spine at C3-4 and C5-6. During a personal hearing before the undersigned in September 2005, at pages 18 and 19, C. B., M.D., (Dr. B), a private physician, testified that he believed that the veteran's symptoms, relating to his degenerative disc disease, were pronounced because the veteran had muscle spasm and pain in distribution of nerve roots which were consistent with what Diagnostic Code 5293 would call sciatica. He also indicated that he believed that based on all of the examinations the veteran demonstrated that there was very little intermittent relief in symptoms. Note (2) of the General Rating Formula for Diseases and Injuries of the Spine provides that normal forward flexion of the cervical spine is 0 to 45 degrees, extension is 0 to 45 degrees, left and right lateroflexion are 0 to 45 degrees, and left and right lateral rotation are 0 to 80 degrees. In reviewing the relevant medical evidence summarized above, the Board finds that the veteran's cervical spine disability is manifested by severe limitation of motion and muscle spasm. However, the current 30 percent is the maximum evaluation allowed under 38 C.F.R. § 4.71a, Diagnostic Code 5290 (effective prior to September 26, 2003. In the absence of unfavorable ankylosis of the cervical spine, a rating in excess of 30 percent is not warranted under the criteria effective September 26, 2003. All examinations have shown some movement of the cervical spine in all planes; there is no finding related to or a diagnosis of ankylosis of the cervical spine, favorable or otherwise. The Court has held that there is no basis for a rating higher than the maximum schedular rating for additional limitation of motion due to pain or functional loss under the provisions of 38 C.F.R. §§ 4.40, 4.45 or 4.59. See VAOPGCPREC 36-97; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Therefore, higher schedular ratings under either Diagnostic Code 5290 or the revised and renumbered Diagnostic Code 5237 are not possible. The veteran's service-connected cervical spine disability also includes degenerative disc disease. The former and current criteria for rating intervertebral disc syndrome permit a rating in excess of 30 percent. See 38 C.F.R. § 4 .71a, Diagnostic Code 5293 (before September 23, 2002 and from that date until September 26, 2003), Diagnostic Code 5243 (2005). In reviewing the relevant medical evidence, the Board finds there is medical evidence of neurological findings which have been associated, by competent medical authority, with the distribution of nerve roots from the cervical spine, consistent with severe intervertebral disc syndrome. Such a finding supports a 40 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5293. As to the question of whether a rating in excess of 40 percent is warranted, while there is some indication that the veteran experiences little intermittent relief, to include the testimony of Dr. B, and there is competent evidence of loss of strength in the right hand, other findings clearly weigh against a finding of pronounced intervertebral disc syndrome, which permits a 60 percent rating under Code 5293. Specifically, July 1997 and September 1999 examinations showed no visible atrophy and musculature appeared to be well developed. The report of an August 1999 X-ray of the veteran's cervical spine reflects that C3-4 disc spaces were narrowed slightly (emphasis added), although the C5-6 disc space was more narrow than the one above. There was clearly no suggestion that there was pronounced disc disease by X- ray. Further, the report of an August 1999 VA EMG indicates no evidence of right arm radiculopathy. It is also significant to note that there is also no finding of an absent relevant reflex. While Dr. B's testimony is competent, it is not clear whether he ever examined the veteran and he did not specifically identify which nerve or nerve group he was comparing by analogy to the sciatic nerve; the latter nerve is the only nerve noted in Code 5293 and it related to the lower spine and legs. The issue here is the appropriate rating for the veteran's cervical spine disability. Moreover, as noted above, the Board finds that objective examination findings are simply not consistent with the severity of the IVDS symptoms noted. In view of the foregoing, the Board finds that the evidence supports an increased rating to 40 percent for the veteran's cervical spine disability, but no more than 40 percent under Diagnostic Code 5293. The Board is not concluding that there is no functional impairment due to degenerative disc disease of the cervical spine. On the contrary, this decision increases the rating to 40 percent based upon a finding of severe intervertebral disc syndrome (emphasis added), which takes into account significant disability. The fact that most of the objective findings do not support a finding of pronounced disability (e.g., normal musculature with no sign of atrophy, no absent relevant reflex) is strong probative evidence that weighs against an even higher rating under Code 5293. It is also pertinent to note that the report of the most recent August 2004 VA examination indicates that there is no loss of pinprick to the arms, forearms, hands, neck regions, or shoulders. It further indicates that the veteran's median, ulnar, and radial nerves in the arms and hands are intact. Changes to the rating criteria for intervertebral disc syndrome (IVDS) became effective September 23, 2002. The new version, which is now redesignated to Diagnostic Code 5243, evaluates IVDS (preoperatively or postoperatively) on either 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2003- 04). For purposes of evaluations under 5243, "[c]hronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from IVDS that are present constantly, or nearly so. Orthopedic disabilities are rated using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. 38 C.F.R. § 4.71a, Diagnostic Code 5293, NOTE 1 (2003-04). Similarly, neurologic disabilities are rated separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes. Id. The veteran's chronic orthopedic manifestations of IVDS during the appeal period have been represented by severe limitation of motion of the cervical spine. As noted above, this warrants a maximum 30 percent rating under Diagnostic Code 5290 and the current criteria for rating cervical spine disability on the basis of limitation of motion (Code 5237) does not permit a rating in excess of 30 percent absent unfavorable ankylosis. See Johnston, 10 Vet. App. at 85. There is no competent evidence of ankylosis to consider application of Diagnostic Codes 5287 or 5235-5243. See Shipwash v. Brown, 8 Vet. App. 218, 221 (1995) (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 91 (27th ed. 1988) (ankylosis refers to immobility and consolidation of a joint due to disease, injury, or surgical procedure). Cf. 38 C.F.R. § 4.71a, Schedule of ratings - musculoskeletal system, NOTE 5 (2003) (fixation of a spinal segment in neutral position (zero degrees) represents favorable ankylosis). Under the new intervertebral disc syndrome regulations, effective in September 2002, Diagnostic Code 5243 provides that a 60 percent evaluation is the highest evaluation that may be assigned under that Diagnostic Code. Note (1) of the General Rating Formula for Diseases and Injuries of the Spine provides that associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. There is evidence that the veteran experiences peripheral neuropathy and other symptoms affecting the lower extremities that is not service connected. However, the neurologic manifestations of the veteran's service-connected cervical spine disability include findings that the veteran experiences some pain in distribution of the nerve roots. Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provide for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. 38 C.F.R. § 4.123. The maximum rating which may be assigned for neuritis not characterized by organic changes as noted above will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate, incomplete paralysis. 38 C.F.R. § 4.124 (2005). In rating disease of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124(a). When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The ratings for peripheral nerves are for unilateral involvement; when bilateral, they are combined with application of the bilateral factor. Id. The use of terminology such as "mild," "moderate" and "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. 38 C.F.R. §§ 4.2, 4.6 (2005). As noted above, there is no competent medical evidence which indicates that the veteran has any relevant muscle atrophy, and the August 2004 VA examination showed that there was no loss of pinprick to the arms, forearms, hands, neck regions, or shoulders, and that the veteran's median, ulnar, and radial nerves in the arms and hands are intact. While a May 2004 letter from Dr. Bash identifies symptoms that he relates to the degenerative disc disease of the cervical spine, he does not identify the symptoms as being related to any specific nerve or indicate any specific nerve deficiency that could be separately evaluated. Therefore, the Board concludes that a preponderance of the evidence is against the assignment of separate neurological evaluations relating to the veteran's degenerative disc disease of the cervical spine other than the already rated IVDS. An alternative higher 60 percent rating may be considered under Diagnostic Code 5243 where there have been incapacitating episodes of IVDS having a total duration of at least six weeks during a 12 month period. An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 U.S.C.A. § 4.71a, Diagnostic Code 5243, NOTE (2004). A careful review of the record does not disclose the requisite number of episodes that would support a higher rating. In fact, notwithstanding Dr. Bash's testimony regarding little intermittent relief, there is not a single instance where these episodes required treatment and a prescription of bed rest by a physician as required for consideration of an alternative rating based upon the yearly duration of episodes of IVDS. In view of the foregoing, the 40 percent granted herein under Diagnostic Code 5293 is the highest evaluation that may be assigned for his service-connected residuals of upper back and neck strain with disc space narrowing at C5. Visual Disorder The veteran's service-connected bilateral pterygium with history of macular hole of the right eye has been evaluated under the provisions of Diagnostic Code 6034 of the Rating Schedule. Diagnostic Code 6034 provides that pterygium is to be rated based on loss of vision, if any. Tables V, 38 C.F.R. § 4.84(a) (2005), provides that a noncompensable evaluation will be assigned where vision in one eye is 20/40 and vision in the other eye is 20/40. The best distant vision attainable after best correction by glasses will be the basis of rating. 38 C.F.R. § 4.75 (2005). The reports of July 1997 and September 1999 VA eye examinations reflect that the veteran's corrected visual acuity, bilaterally, is 20/20. There is no competent medical evidence indicating that his corrected visual acuity, bilaterally, is less than 20/20. Since all of the competent medical evidence indicates that the veteran's corrected bilateral visual acuity is 20/20, a preponderance of the evidence is against a compensable evaluation for bilateral pterygium with history of macular hole of the right eye. ORDER An increased rating for bilateral pes planus with hallux valgus is denied. An increased rating of 40 percent, but not greater, for residuals of a neck strain with disc space narrowing at C5 is granted, subject to the laws and regulations governing the payment of monetary benefits. A compensable evaluation for bilateral pterygium with history of macular hole of the right eye is denied. REMAND As noted in the introduction above, service connection is in effect for residuals of a neck and upper back strain with disc space narrowing at C5, currently evaluated as 30 percent disabling. (Emphasis added.) The Board decision above granted an increased rating of 40 percent for the veteran's residuals of a neck with disc space narrowing at C5. As to the upper back strain, it is not clear from the record whether such involves the thoracic spine or the lower cervical spine. If the former, there is potential for a separate compensable rating. The RO must clarify this matter. As the claim for a separate compensable rating for an upper back disability, to include disease of the thoracic spine is intertwined with the claim for a TDIU, adjudication of the latter claim must be deferred pending completion of the development of the raised issue noted above. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The veteran's service-connected disabilities are bilateral pes planus with hallux valgus, evaluated as 30 percent disabling, residuals of upper back and neck strain with disc space narrowing at C5, evaluated (as the result of this Board decision) as 40 percent disabling, and bilateral pterygium with history of macular hole of the right eye, evaluated as noncompensably disabling; his combined service-connected disability evaluation is 60 percent. It is pertinent to note that the Board has no power in the first instance to award a TDIU rating on an extraschedular basis under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1, 10 (2001); see also VAOPGCPREC 6-96. The RO must also review the claims file and ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002) are fully complied with and satisfied with respect to the claims for a separate compensable rating for an upper back disability and entitlement to a TDIU. In view of the foregoing, this case is remanded for the following: 1. The RO must review the claims file and ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002) are fully complied with and satisfied with respect to the claims for a separate compensable rating for an upper back disability and entitlement to a TDIU. 2. The RO should contact the veteran and provide him with an opportunity to submit any additional evidence in support of the claims that remain on appeal, to include statements from former employers or co- workers. 3. Thereafter, the RO should ensure that no other notification or development action, in addition to that directed above, is required. If further action is required, the RO should undertake it before further adjudication of the claim. 4. After the development requested above has been completed to the extent possible, the RO should clarify whether service connection is in effect for an upper back disability that includes the thoracic spine and determine whether the veteran is entitled to a separate compensable rating. The RO should then determine whether the veteran meets the scheduler criteria for a TDIU, taking into consideration the instant Board decision granting a 40 percent rating for the veteran's residuals of a neck strain with disc space narrowing at C5 and, if applicable, the rating for his upper back or thoracic spine disability. If the veteran does not meet the scheduler criteria for a TDIU, the RO must refer the issue to the Director of the Compensation and Pension Service for extra-schedular consideration pursuant to 38 C.F.R. §§ 3.321(b) and/or 4.16(b). 5. Thereafter, if either benefit sought on appeal remains denied, the veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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 The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003), codified at 38 U.S.C. §§ 5109B, 7112. ____________________________________________ R. F. WILLIAMS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs