Citation Nr: 0809823 Decision Date: 03/25/08 Archive Date: 04/09/08 DOCKET NO. 06-06 893 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim of service connection for a low back disability. 2. Whether new and material evidence has been presented to reopen a claim of service connection for muscle spasms of the chest and shoulder. 3. Whether new and material evidence has been presented to reopen a claim of service connection for a rash of the legs, neck, and chest. 4. Whether new and material evidence has been presented to reopen a claim of service connection for post-traumatic stress disorder (PTSD). 5. Entitlement to service connection for peripheral neuropathy of the right upper extremity. 6. Entitlement to service connection for peripheral neuropathy of the right lower extremity. 7. Entitlement to service connection for a urinary disorder. 8. Entitlement to service connection for a speech disorder. 9. Entitlement to a compensable rating for fracture of the inferior and superior rami of the left pelvis. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Debbie A. Riffe, Counsel INTRODUCTION The veteran, who is the appellant, served on active duty from April 1968 to January 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in November 2004 of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The applications to reopen claims of service connection for muscle spasm of the chest and shoulder, for a rash of the legs, neck, and chest, and for PTSD; the claim of service connection for a urinary disorder; and the claim of service connection for a low back disability reopened herein below, are REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. In a rating decision in October 1999, the RO denied the claim of service connection for a low back disability, specifically herniated nucleus pulposus of the lumbar spine; after the veteran was notified of the adverse determination and of his procedural and appellate rights in October 1999, he did not appeal the rating decision within the allotted time and the rating decision became final by operation of law based on the evidence of record at the time. 2. The additional evidence presented since the rating decision in October 1999 by the RO includes evidence that is not cumulative or redundant of evidence previously considered and is so significant that it must be considered in order to fairly decide the merits of the claim of service connection for a low back disability. 3. Peripheral neuropathy of the right upper extremity has not been diagnosed. 4. Peripheral neuropathy of the right lower extremity has not been diagnosed. 5. There is competent medical evidence showing that the veteran currently has a speech disorder that has been medically related, in part, to his service-connected stroke residuals. 6. The fracture of the inferior and superior rami of the left pelvis is manifested by chronic pain and limited range of motion due to pain and weakness. CONCLUSIONS OF LAW 1. New and material evidence has been presented to reopen the claim of service connection for a low back disability. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002); 38 C.F.R. § 3.156 (2001). 2. Peripheral neuropathy of the right upper extremity is not due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2007). 3. Peripheral neuropathy of the right lower extremity is not due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2007). 4. A speech disorder is proximately due to service-connected stroke residuals. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.310 (2007). 5. The criteria for a 10 percent rating for fracture of the inferior and superior rami of the left pelvis have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.20, 4.71a, Diagnostic Codes 5003, 5010, 5253 (2007). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claims. As the application to reopen the claim of service connection for a low back disability is favorable to the veteran, no further action is required to comply with the VCAA. Duty to Notify Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claims, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Under 38 C.F.R. § 3.159, VA must request that the claimant provide any evidence in the claimant's possession that pertains to the claims. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In regard to the higher rating claim on appeal, the VCAA notice requirements include notice of the type of evidence needed to substantiate a claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Also, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the VA must provide at least general notice of that requirement to the claimant. Vazquez- Flores v. Peake, No. 05-355 (U.S. Vet. App. Jan. 30, 2008). The RO provided pre- and post- adjudication VCAA notice by letters, dated in July 2004 and in March 2006. The notice included the type of evidence needed to substantiate the claims of service connection, namely, evidence of an injury or disease or event, causing an injury or disease, during service; evidence of current disability; and evidence of a relationship between the current disability and the injury or disease or event, causing an injury or disease, during service. The notice included the type of evidence needed to substantiate the claim for increase, namely, evidence that the symptoms had increased and the effect of that worsening has on the claimant's employment and daily life. The veteran was informed that VA would obtain service medical records, VA records, and records from other Federal agencies, and that he could submit private medical records or authorize VA to obtain the records on his behalf. He was asked to submit any evidence in his possession that pertained to the claims. The notice also included the provisions for the degree of disability assignable and for the effective date of the claims. As for content of the VCAA notice, the documents substantially complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (38 C.F.R. § 3.159 notice); of Dingess v. Nicholson, 19 Vet. App. 473 (notice of the elements of service connection claim); and of Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App. Jan. 30, 2008) (evidence demonstrating an increase in severity, except for the general notice of the criteria of the Diagnostic Code under which the claimant is rated). To the extent that the VCAA notice came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. The procedural defect was cured as after the RO provided substantial content-complying VCAA notice the claims were readjudicated as evidenced by the supplemental statement of the case, dated in November 2007. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.). To the extent that the VCAA notice did not include the criteria of the Diagnostic Codes under which the claimant is rated, when the veteran already has notice of the pertinent Diagnostic Code and rating criteria as provided in the statement of the case, there is no reasonable possibility that further notice of the exact same information would aid in substantiating the claim. As the content error did not affect the essential fairness of the adjudication of the claim for increase, the presumption of prejudicial error as to the content error in the VCAA notice is rebutted. Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the VCAA is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim); Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007); Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App. Jan. 30, 2008). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claims. The veteran was afforded the opportunity to testify at personal hearing, but he declined a hearing. The RO has obtained the veteran's service medical records, VA treatment records, and private medical records identified by the veteran to include reports from Scott and White Hospital, Brackenridge Hospital, and Seton Hospital. The veteran has not identified any other pertinent evidence for the RO to obtain on his behalf. Further, VA has conducted necessary medical inquiry in an effort to substantiate the claims. The veteran was afforded VA examinations in August 2004, January 2006, and July 2006, specifically to evaluate the etiology, nature and severity of the claimed conditions. There is no evidence in the record dated subsequent to the VA examinations to show a material change in the left pelvic disability to warrant another examination. 38 C.F.R. § 3.327(a). As there is no indication of the existence of additional evidence to substantiate the claims, the Board concludes that the duty-to-assist provisions of the VCAA have been complied with. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence Low Back Disability Procedural History and Evidence Previously Considered In a rating decision in October 1999, the RO denied service connection for a lumbar spine disability, specifically herniated nucleus pulposus of the lumbar spine, on the basis that the veteran's currently diagnosed low back disability is not shown by the medical evidence to be related to his period of service to include injury from a motor vehicle accident. The RO stated that there was no basis upon which to change the previous decision. The RO previously denied the veteran's claim for service connection for a low back disability in rating decisions in February 1971, October 1992, and May 1996. In a letter, dated in October 1999, the RO notified the veteran of the adverse determination and of his procedural and appellate rights. The notice included the veteran's right to appeal the adverse determination by notifying the RO of his intention within one year from the date of the letter. As the veteran did not indicate his disagreement within the time allotted, the rating decision by the RO in October 1999 became final by operation of law, except the claim may be reopened if new and material evidence is presented. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104, 3.156. The evidence of record at the time of the rating decision in October 1999 includes service medical records, VA records, and private reports. Service medical records show that the veteran was seen on several occasions complaining of low back pain in 1968 and 1969, sometimes after heavy lifting. In September 1968 (or possibly 1969), the veteran was seen for injuries (thigh, knees) sustained in a motor vehicle accident. A July 1969 record indicates that he had back pains for five years, related to playing football when he was hit in the mid-back. A radiographic report of the lumbosacral spine in August 1969 noted the pre-service football injury and a second injury in June 1968, and the findings were that of no residuals of previous trauma evident and a transition body at the lumbosacral junction. The veteran was hospitalized from September 1969 to October 1969 with a fracture of the left pelvic ramus. Enlistment and separation physical examinations do not show any complaints, findings, or diagnosis of a low back disability. Private and VA medical records do not show complaints or treatment of a low back condition for many years. VA outpatient records dated beginning in 1992 indicate that the veteran had chronic low back pain (the veteran complained that he had had pain since 1972). A private physician in a May 1995 statement indicated that the veteran had reported chronic low back pain since an accident in 1969. A VA examination report of September 1995 related that the veteran fractured his left ramus pubis in a 1969 motor vehicle accident; the diagnosis included lumbosacral strain. VA hospital records dated in June 1995 and June 1996 indicate diagnoses of a low back syndrome secondary to a motor vehicle accident in 1969. In June 1998, a VA physician indicated that he reviewed old records and that he believed it was likely that the veteran's lower back pathology manifested during active duty and continued to the present time. Current Claim to Reopen As the unappealed rating decision in October 1999 by the RO became final based on the evidence then of record, new and material evidence is required to reopen the claim. 38 U.S.C.A. § 5108. In December 2000, the veteran submitted a statement indicating his disagreement with the October 1999 rating decision, and as it was not received within the allotted time frame to initiate an appeal, it is deemed an application to reopen his claim of service connection for a low back disability. New and material evidence is defined as evidence not previously submitted to agency decisionmakers that bears directly and substantially upon the specific matter under consideration; which is neither cumulative nor redundant; and which, by itself or in connection with 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) (2001). The definition of new and material evidence has since been amended, but the amended version does not apply to the veteran's claim because the claim was received prior to the change in the regulation. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The additional pertinent evidence presented since the rating decision in October 1999 includes VA records and statements of the veteran. Analysis In order that the additional evidence may be considered new and material, the evidence must relate to the basis for the prior denial of the claim, that is, that there was not medical evidence relating the veteran's diagnosed low back disability to his period of service. In regard to the additional evidence, of particular note is the statement of a VA physician in March 2000 in which he clarified his earlier statement in June 1998, relating the etiology of the veteran's herniated nucleus pulposus of the lumbar spine to service, he reiterated his previous statements, adding specifically that he had reviewed the veteran's service medical records, and he expressed the opinion that it was at least as likely as not the veteran's lumbar spine disability manifested while on active military duty. He ended by stating that the veteran continued to be followed for his condition at the VA clinic. This medical opinion, relating the veteran's low back disability to his period of service based on a review of the service medical records, is new and material because it is probative of the issue of whether the veteran has a current diagnosis of a low back disability that may be related to service, the absence of which was the basis for the prior denial of the claim. For this reason, the additionally evidence is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156. As the Board finds that new and material evidence has been presented since the rating decision by the RO of October 1999, denying the claim of service connection for a low back disability, specifically herniated nucleus pulposus of the lumbar spine, the claim is reopened. II. Service Connection Principles of Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be warranted for disability proximately due to or the result of a service-connected disorder and where aggravation of a nonservice-connected disorder is proximately due to or the result of a service- connected disability. 38 C.F.R. § 3.310(a). Secondary service connection requires (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Analysis Peripheral Neuropathy The veteran claims that he has a neuropathy in both arms and feet that was due to his service-connected diabetes mellitus. In a statement of an attending physician, dated in November 2002, the veteran's VA physician indicated that in regard to the veteran's history of illness, he had diabetes mellitus with probably neuropathy, among other ailments. However, in the diagnosis section of the statement, the physician indicated diabetes mellitus, without any mention of neuropathy. An August 2004 VA diabetes mellitus examination notes that the veteran had left-sided hemiparesis with no sensation to pinprick in the left upper and lower extremities, but normal sensation in the right upper and lower extremities. The examiner expressed the opinion that it was "as likely as not that the diabetes might have contributed to the peripheral neuropathy in the left upper and lower extremities." There was no reference to a neuropathy affecting the right upper and lower extremities. VA outpatient records, such as in May 2005, reflect in the assessment that the veteran had a spinal cord injury with left hemiparesis. VA outpatient records also note a previous medical history of spinal injury with left hemiparalysis and a report of a cerebrovascular accident in 2003. There was no reference to a neuropathy affecting the right upper and lower extremities. At the time of a January 2006 VA examination, the diagnoses included diabetes mellitus, left hemiparesis, and peripheral neuropathy of the left lower extremity. In July 2006, the veteran underwent a VA examination specifically to evaluate right upper and lower extremity peripheral neuropathy due to diabetes. He denied any hemiparesis, numbness, or weakness in regard to his right leg. He stated that the only impairment regarding the right side was a tremor. It was noted that an April 2006 neurology consult felt that the tremor was either an essential tremor or induced by sertraline (a medication prescribed for a mood disorder). The diagnosis was peripheral neuropathy of the right upper and lower extremity was not found. As the record now stands, there is no satisfactory proof, on any clinical record, that the veteran has a current diagnosis of peripheral neuropathy of the right upper extremity or of the right lower extremity. In the absence of medical evidence of a current diagnosis of peripheral neuropathy in these extremities, service connection cannot be granted. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. A condition or injury occurred in service alone is not enough; there must be a current disability resulting from that condition or injury. Chelte v. Brown, 10 Vet. App. 268, 271 (1997). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The veteran's statements to the effect that he has peripheral neuropathy affecting the right upper and lower extremities that is attributable to his service-connected diabetes mellitus lack probative value, particularly in light of the absence of a current diagnosis of peripheral neuropathy of the right upper and lower extremities. Where, as here, the determinative issue involves a question of a medical diagnosis or of medical causation, competent medical evidence is required to substantiate the claim. The veteran as a lay person is not competent to offer an opinion on a medical diagnosis or on medical causation, and consequently his statements relating a current peripheral neuropathy to a service-connected disability do not constitute medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Also, although the veteran is competent to describe symptoms of a neurological problem affecting his right upper and lower extremities, that is, symptoms capable of lay observation, the veteran is not competent to make a medical diagnosis of a condition that is medical in nature, that is, not capable of lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As the Board may consider only independent medical evidence to support its findings, and as there is no favorable medical evidence of a current peripheral neuropathy of the right upper extremity and of a current peripheral neuropathy of the right lower extremity, the preponderance of the evidence is against the claims, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). Speech Disorder The veteran claims that his speech difficulties are due to a stroke. In a December 2006 rating decision, the RO granted service connection for residuals of stroke, specifically loss of use of the left leg and left arm and dementia, as due to service-connected diabetes mellitus. Interestingly, the RO indicated in a November 2007 rating decision that the issue of service connection for speech difficulties had been resolved by a prior rating decision; however, neither the rating decision of December 2006 nor the rating codesheet from that time reflects that service connection was established for a speech disorder. Therefore, the issue is still in appellate status. A review of the pertinent medical evidence shows that at the time of a July 2006 VA examination, the veteran was confused, had slow speech, and had trouble finding words. He was diagnosed with speech impairment, along with cognitive impairment and left-sided hemiparesis. The previous month, on a VA psychiatric examination, the diagnosis was dementia secondary to cerebrovascular accident. In a longitudinal review of the evidence and after construing the evidence in a light most favorable to the veteran, in the Board's opinion there is competent evidence to support the claim that the veteran's speech disorder is related, at least in part, to service-connected disability. There is no medical opinion to the contrary. Thus, the Board concludes that there is a basis of entitlement to secondary service connection under 38 C.F.R. § 3.310. III. Higher Rating General Rating Principles A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities.38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Furthermore, the Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Analysis In this case, the veteran maintains that his service- connected fracture of the inferior and superior rami of the left pelvis is more severe than is reflected in the currently assigned rating. His disability has been evaluated as noncompensable under 38 C.F.R. § 4.71a, Diagnostic Code 5253. Under Diagnostic Code 5253, for impairment of the thigh, a 10 percent rating is warranted for limitation of rotation of the thigh, cannot toe-out more than 15 degrees, affected leg; and for limitation of adduction of the thigh, cannot cross legs. A maximum rating of 20 percent is warranted for limitation of abduction of the thigh, with motion lost beyond 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5253 (2007). Under Diagnostic Code 5251, for limitation of extension of the thigh, extension limited to 5 degrees warrants a maximum rating of 10 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5251 (2007). Under Diagnostic Code 5252, for limitation of flexion of the thigh, flexion limited to 45 degrees warrants a 10 percent rating; flexion limited to 30 degrees warrants a 20 percent rating; flexion limited to 20 degrees warrants a 30 percent rating; and flexion limited to 10 degrees warrants a 40 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5252 (2007). Under Diagnostic Code 5250, for ankylosis of the hip, a minimum rating of 60 percent is warranted for favorable ankylosis, in flexion at an angle between 20 degrees and 40 degrees, and slight adduction or abduction. 38 C.F.R. § 4.71a, Diagnostic Code 5250 (2007). Under Diagnostic Code 5010, arthritis due to trauma, substantiated by X-ray findings, is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Pursuant to Diagnostic Code 5003, degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. When there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation-of-motion code, a 10 percent rating will be assigned for each affected major joint or group of minor joints. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, 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. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The pertinent medical evidence in the file is derived from VA examinations in August 2004, January 2006, July 2006, as well as VA outpatient records. The difficulty in this case in applying evaluation criteria to the clinical findings is that on each of the VA examinations, the examiners have commented that the veteran was wheelchair bound and that a detailed assessment of his joint disability could not be completed due to left hip pain (in fact in July 2006, the veteran asked to leave due in part to pain and fatigue). Further, the veteran himself was observed to be drowsy and attempts to move him out of his wheelchair or to measure range of motion were to no avail. At the time of the July 2006 VA examination, for example, the examiner stated that the physical examination was not completed and that upon palpation of the affected joint there was severe pain with grimacing and guarding whenever the veteran was touched on the left hip/groin area and upper leg. The examiner stated that the veteran had no active range of motion of the left hip, and that even trying to measure passive range of motion was not possible due to pain. The diagnosis was that of left pelvic fracture with chronic pain and limited range of motion due to pain and weakness. A complicating factor also noted on VA reports was the fact that the veteran had left-sided hemiparesis and was unable to move his left side, unable to stand, and basically had no functional use of the left side. Additionally, it is noted that there is no current radiographic evidence of arthritis of the left pelvis, presumably because the veteran was not able to be moved from his wheelchair for examination. In short, the record does not disclose the necessary clinical findings of range of motion with which to evaluate his left pelvis disability. Attempts to obtain such were fruitless, due to the veteran being wheelchair bound, and due to his left-sided hemiparesis, drowsy state, pain, and hunger. Without objective findings to which to apply the relevant criteria under Codes 5250, 5251, 5252, and 5253, the veteran's left pelvic fracture residuals do not warrant a compensable evaluation. Nevertheless, it is clear that the veteran experiences chronic pain on motion. This is evident based on the notations and complaints of chronic left hip pain in various evaluation reports, particularly in July 2006 when the veteran evidenced severe pain with grimacing and guarding wherever the examiner touched him on the left hip/groin area and upper leg. The diagnosis was left pelvic fracture with chronic pain and limited range of motion due to pain and weakness. It is in view of this pain and the functional loss associated with it, and despite the lack of current radiographic evidence of arthritis in the pelvis, that the Board concludes that a 10 percent evaluation for the disability is warranted, rated by analogy (38 C.F.R. § 4.20) under 38 C.F.R. § 4.71a, Diagnostic Code 5003. ORDER As new and material evidence has been presented, the claim of service connection for a low back disability is reopened, and to this extent only the appeal is granted. Service connection for peripheral neuropathy of the right upper extremity is denied. Service connection for peripheral neuropathy of the right lower extremity is denied. Service connection for a speech disorder is granted. A 10 percent rating for fracture of the inferior and superior rami of the left pelvis is granted, subject to the law and regulations, governing the award of monetary benefits. REMAND Prior to considering the claim of service connection for a low back disability on the merits, under the duty to assist additional evidentiary development is needed. As for the claims of whether new and material evidence has been presented to reopen claims of service connection for muscle spasms of the chest and shoulder and of service connection for a rash of the legs, neck, and chest, proper VCAA notice has not been furnished to the veteran. As for the claim of whether new and material evidence has been presented to reopen a claim of service connection for PTSD, in a statement dated in September 2005, the veteran's representative claimed that there was clear and unmistakable error in a May 1996 rating decision of the RO, which initially denied the claim of service connection for PTSD. The representative enumerated specific reasons for the claim of clear and unmistakable error. Prior to the Board promulgating a decision on whether to reopen the claim of service connection for PTSD, the RO must initially adjudicate the inextricably intertwined claim of clear and unmistakable error. As to the claim of service connection for a urinary disorder, the veteran claims that he has a urinary condition that is related to his service-connected diabetes mellitus. Under the duty to assist, further evidentiary development in the form of a VA examination is required to decide the claim. Accordingly, the case is REMANDED for the following action: 1. Ensure content-complying VCAA notice with Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (38 C.F.R. § 3.159 notice); of Dingess v. Nicholson, 19 Vet. App. 473 (notice of status as a veteran); and of Kent v. Nicholson, 20 Vet. App. 1 (2006) (the elements of a new and material evidence claim), with regard to the applications to reopen the claims of service connection for muscle spasms of the chest and shoulder and service connection for a rash of the legs, neck, and chest. 2. Adjudicate the claim of whether clear and unmistakable error exists in a May 1996 rating decision by the RO, denying service connection for PTSD. If the decision is adverse to the veteran, he should be advised as to how he can initiate an appeal to the Board. 3. Schedule the veteran for a VA examination to determine whether it is at least as likely as not that his current low back disability is related to his period of service. The claims file must be made available for review by the examiner. The examiner is asked to consider the following facts from the record. There is no contemporary entry in the service medical records that the veteran suffered a low back injury per se in relation to a motor vehicle accident in September 1968 or 1969, but the veteran is competent to describe the injury, namely, that he complained of low back pain during treatment for a fracture of the left pelvis that was sustained during the accident; the service medical records do show several complaints of low back pain in relation to heavy lifting in 1968 and 1969; the veteran's enlistment and separation physical examinations do not reference low back complaints or abnormal findings; and that in July 1969 the veteran reported having injured his back while playing football prior to service, and a subsequent lumbosacral X-ray did not show residuals of a previous trauma. After service, VA records first document a low back disability in the early 1990s and VA hospital records in 1995 and 1996 show diagnoses of a low back condition secondary to a motor vehicle accident in 1969; and at least one VA physician (as shown in statements dated in June 1998 and March 2000) has reportedly reviewed service medical records and opined on a relationship between the veteran's herniated nucleus pulposus of the lumbar spine and his period of 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 causation is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. 4. Schedule the veteran for an appropriate VA examination to determine whether the veteran's current urinary problems are related to the veteran's service-connected diabetes mellitus. The claims folder should be made available to the examiner for review. 5. After completing the above development, adjudicate the claims. If any benefit remains denied, furnish the veteran a supplemental statement of the case and return the case 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs