Citation Nr: 0813397 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 03-33 504 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right knee disorder. 2. Entitlement to service connection for a left knee disorder. 3. Entitlement to a compensable evaluation for epidermal phytosis of both feet. 4. Entitlement to an increased evaluation for pseudofolliculitis barbae, currently rated as 10 percent disabling. 5. Entitlement to an increased evaluation for a lumbar back condition, currently rated as 20 percent disabling. 6. Entitlement to an increased evaluation for a disorder characterized as impaired sensation in the left lower extremity/radiculopathy, currently rated as 10 percent disabling. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. C. Dale, Associate Counsel INTRODUCTION The veteran had active duty from February 1977 to February 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2003 and May 2004 rating decisions by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). The Board remanded these issues in July 2006 for additional development, including VA examinations for knee, back, and skin conditions. The RO granted an increased rating for lumbar strain and pseudofolliculitis barbae in an October 2007 decision. However, the United States Court of Appeals for Veterans Claims (Court) indicated that a claimant will generally be presumed to be seeking the maximum benefits allowed by law and regulations, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1992). Therefore, the claims for lumbar strain and pseudofolliculitis barbae remain in appellate status. Regarding the issue of radiculopathy of the left lower extremity, the veteran filed a timely November 2007 Notice of Disagreement (NOD) in response to an October 2007 RO decision granting the veteran service connection and assigning a 10 percent rating. The veteran also continued to disagree with the denial of service connection for a left and right knee disorder, and the denial of an increased rating for a lumbar spine disorder, as the veteran alluded to his continued disagreement with issues 1, 2, and 3 as stated on the Supplemental Statement of the Case dated in October 2007. Because this decision continues to deny service connection for a left and right knee disorder, the veteran's claim is already in appellate status. Further, because the issues of the assigned effective date for the grant of a increased evaluation is included in the determination of such evaluation, this issue is also under appellate review. Hart v. Mansfield, 21 Vet. App. 505 (2007). As the Board presently remands the issue of an increased ratings for pseudofolliculitis and lumbar back disorders to the RO via the Appeals Management Center (AMC), in Washington, DC, the adjudicators upon review of these issues will address the veteran's effective date of rating increase contentions. The claims pertaining to the evaluation for the lumbar back disorder (lumbar strain and degenerative disc disease) and pseudofolliculitis are REMANDED to the AMC to ensure compliance with applicable law. VA will notify the veteran if further action is required on his part. FINDINGS OF FACT 1. A right knee disorder was not was not manifested during the veteran's active service or for many years after separation from service, nor is a right knee disorder otherwise related to such service. 2. A left knee disorder was not was not manifested during the veteran's active service or for many years after separation from service, nor is a left knee disorder otherwise related to such service. 3. The veteran does not have active epidermal phytosis in either foot. CONCLUSIONS OF LAW 1. A right knee disorder was not aggravated or incurred during active service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2007). 2. A left knee disorder was not aggravated or incurred during active service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2007). 3. The criteria for a compensable evaluation for epidermal phytosis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.118, Diagnostic Codes 7813- 7899 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Before addressing the merits of the claims, the Board is required to address the duty to notify and duty to assist imposed by 38 U.S.C.A. §§ 5103, 5103(A) and 38 C.F.R. § 3.159. VA has a duty to notify a claimant and his representative, if any, of the information and evidence needed to substantiate a claim. This notification obligation was accomplished by way of letters from the RO to the veteran dated in October 2002, January 2003, January 2004, February 2005, and July 2006. These letters effectively satisfied the notification requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing the veteran about the information and evidence not of record that was necessary to substantiate the claim; (2) informing the veteran about the information and evidence VA would seek to provide; (3) informing the veteran about the information and evidence he was expected to provide; and (4) requesting the veteran provide any evidence in his possession that pertains to his claim. Also, for an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay 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. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Further, 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 that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, supra. Given VA's correspondence with the veteran throughout the pendency of the appeal, in particular as to the claim for an increased rating for epidermal phytosis of both feet, it cannot be doubted that as a reasonable person, the veteran would have known what information and evidence would substantiate his claims. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Subsequent to receipt of the veteran's October 2002 claims, he was apprised of what evidence would substantiate the claims by letters dated in January 2002, January 2004, February 2005, and July and August 2006. In January 2004, the RO provided notice to the veteran regarding what information and evidence is needed to substantiate increased ratings claims, as well as specifying what information and evidence must be submitted, what information and evidence will be obtained by VA, and the need to advise VA of or submit any further evidence that pertains to the claims. Through February 2003 and May 2004 RO decisions, an August 2003 Statement of the Case (SOC), and May 2004 and April 2005 Supplemental Statements of the Case (SSOC), the veteran was notified of the rating criteria applied to his increased rating claims. The veteran was also advised of what information was needed to substantiate his claims via a July 2006 Board remand of the issues under appellate consideration. In light of these notifications, the veteran was afforded an opportunity to respond before an October 2007 SSOC adjudication. See Sanders supra. Since the veteran was notified of the rating criteria applied to his claims before the last adjudication by the agency of original jurisdiction, the Board finds that any notification errors in light of Vazquez-Flores are non-prejudicial. Id. The veteran did not receive notice as to the information and evidence needed to substantiate effective date claims until a July 2006 letter as required by Dingess v. Nicholson, 19 Vet. App. 473 (2006). As such, this aspect of the VCAA notice was not compliant with Dingess. Nevertheless, the Board finds that such error is not prejudicial to the veteran because the veteran was afforded an opportunity to respond in light of this notice before the last adjudication by the RO in an October 2007 SSOC. Sanders, supra. The evidence does not show, nor does the veteran or his representative contend, that any notification deficiencies, either with respect to timing or content, have resulted in prejudice. See Mayfield, supra (due process concerns with respect to VCAA notice must be pled with specificity). Second, VA has a duty to assist a veteran in obtaining evidence necessary to substantiate a claim. The service medical records are associated with the claims file. Private medical records and VA treatment records are also available. Additionally, the veteran was afforded multiple VA examinations in connection with his claims. See Charles v. Principi, 16 Vet. App. 370 (2002) (Observing that under 38 U.S.C.A. § 5103A(d)(2), VA was to provide a medical examination as "necessary to make a decision on a claim, where the evidence of record, taking into consideration all information and lay or medical evidence [including statements of the claimant]; contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and indicates that the disability or symptoms may be associated with the claimant's active military, naval, or air service; but does not contain sufficient medical evidence for the [VA] to make a decision on the claim."). The veteran and his representative have not made the RO or the Board aware of any outstanding evidence that must be obtained in order to fairly decide his claim. As such, all relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained and the case is ready for appellate review. Analyses Service Connection for Left and Right Knee Disorders: The veteran seeks service connection for disorders of both knees. After a review of the record, the Board finds that the preponderance of the evidence is against the claims, and they must be denied. The competent evidence of record clearly shows that although the veteran experienced skin abrasions of both knees while in service, his current knee disorders were not caused by any in-service incident, and were instead caused by post-service employment accidents. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Alternatively, the nexus between service and the current disability can be satisfied by medical or lay evidence of continuity of symptomatology and medical evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). The veteran's service medical records, dated June 1979, show that the veteran complained of abrasions on both knees after an automobile accident. It was noted that the veteran's "skin wounds" were cleaned and dressed. He was treated and released in good condition. There are no references to any residuals of the skin abrasions contained in the service medical records. Private medical records from April 1984 (i.e., approximately three years after he was discharged from active military duty) reveal that the veteran injured his knees in the course of civilian employment when a truck latch hit his knee on several occasions. A December 1984 VA treatment note indicates that the veteran was complaining of symptoms of arthralgia and crepitus of the right knee following what was termed an "industrial accident." He was diagnosed with contusion with chondromalacia of the patella in his right knee. In December 2001, the veteran underwent magnetic resonance imaging of both of his knees, following a "motor vehicle accident [on] March 15, 2001." Because these records were generated with a view towards ascertaining the veteran's diagnosis and treatment, they are of increased probative value. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (Observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rational that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). The veteran underwent an August 2006 VA examination of his knees. The examiner found that the veteran experience bilateral knee pain, which was worse with his right knee. However, the veteran did not use knee braces and the pain did not interfere with his activities of daily living. X-rays confirmed osteoarthritis in both knees, and the veteran was diagnosed with osteoarthritis in both knees. While the examiner reported that the current knee conditions were as likely as not related to the in-service vehicle accident where the veteran lacerated his knees, in an August 2007 addendum to the August 2006 VA examination report, the examiner clarified his opinion after again reviewing the record. Specifically, the examiner noted that he had erroneously construed a document preferred by a service representative arguing that the bilateral knee disorder had already been deemed to have been incurred in service. In his addendum, the examiner clarified that in-service injury was mostly likely a minor injury and that it is less likely related to the current knee conditions. The preponderance of the competent (i.e., qualified as to expertise and informed as to fact) medical evidence does not establish an etiological link between the veteran's active service and his current knee conditions. By "competent medical evidence" is meant in part that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a). In particular, the 1984, post-military service knee injury was not mentioned in the August 2006 VA examination report, but it was mentioned in the August 2007 addendum. In his addendum, the examiner explained that the in-service knee injury was minor and there is no evidence, such as subsequent complaints or treatment immediately following the injury, of chronic residuals. The August 2007 addendum is probative since it reflects a more detailed review of the veteran's past medical history regarding his knees and a clearer rationale for the stated opinion. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (holding that it is error to reject a medical opinion solely on the basis that the medical opinion was based on a history given by the veteran). The Board finds that the medical evidence does not show that the veteran's current knee conditions are etiologically related to his active service, and service connection for disorders of both knees must be denied. Increased Rating of Epidermal Phytosis of the Feet: Disability evaluations are determined by the application of a schedule of ratings which is based upon an average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. §§ 3.102, 4.3, 4.7. In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two disability 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. In the evaluation of service-connected disabilities the entire recorded history, including medical and industrial history, is considered so that a report of a rating examination, and the evidence as a whole, may yield a current rating which accurately reflects all elements of disability, including the effects on ordinary activity. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.41. The RO granted service connection for a skin condition of both feet in an April 1985 decision and assigned a noncompensable rating. In a February 2003 RO decision, the noncompensable rating was continued. The veteran appealed to the Board. In July 2006, the Board remanded this issue for a VA examination. Upon careful consideration of the claim, the Board finds that the preponderance of the evidence is against the claim, and the appeal must be denied. The veteran's skin condition of his feet are evaluated as noncompensable under Diagnostic Codes 7813-7899 for skin conditions. 38 C.F.R. § 4.118, DCs 7813-7899. While the veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Court recently held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). VA treatment records, dated September 2002 and October 2004, reflect that the veteran was treated for onychomycosis. The skin condition of the veteran's feet was referenced in a January 2003 VA examination report. It showed that the veteran had onychomycosis that was resolving with medication. The veteran underwent a September 2006 VA skin examination for tinea pedis and onychomycosis. Upon physical examination, the examiner found the veteran's feet to be clear with no lesions after Lamisil treatment. She also noted that the veteran's tinea pedis had resolved. The examiner did not find that the veteran had a current skin condition of his feet. Without an identifiable skin condition, the assignment of a compensable rating is not warranted. See 38 C.F.R. § 4.118, DCs 7813-7899. The veteran has requested that this matter be referred for an extraschedular evaluation. However, a temporal review of the veteran's symptomatology reveals that referral of this issue is not warranted. Pursuant to 38 C.F.R. § 3.321(b)(1), an increased disability rating on an extraschedular basis may be awarded "[t]o accord justice to the exceptional case were the schedular evaluations are found to be inadequate . . . ." Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992); see Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An exceptional case includes factors such as "marked interference with employment or frequent periods of hospitalizations [due exclusively to service-connected disability] as to render impractical the application of regular rating standards." Moyer, 2 Vet. App. at 293 (quoting 38 C.F.R. § 3.321(b)(1)). The test is a stringent one for, as the Court has held, "it is necessary that the record reflect some factor which takes the claimant outside the norm of such veteran. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough." Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). ORDER Service connection for a right knee disorder is denied. Service connection for a left knee disorder is denied. A compensable evaluation for epidermal phytosis of both feet is denied. REMAND The Board has determined that clarification is required as to the veteran's back disability and pseudofolliculitis disability claims. Lumbar Back Condition and Impaired Sensation of the Left Lower Extremity The veteran submitted his claim for an increased rating in October 2002, and the claim has since been pending appellate review. During its pendency, the applicable rating criteria for the spine, found at 38 C.F.R. § 4.71a, were amended effective September 26, 2003. See 68 Fed. Reg. 51, 454-51, 458 (Aug. 27, 2003). Because it does not appear that the veteran has been adequately advised under the law as to what evidence would substantiate his claim, and because the RO's findings are unclear, the Board will remand the claim. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The law provides that where a law or regulation changes after the claim has been filed, but before the administrative or judicial process has been concluded, the version most favorable to the veteran applies unless Congress provided otherwise or permitted the Secretary of VA to do otherwise and the Secretary did so. See VAOGCPREC 7-2003. Additionally, VA's Office of General Counsel has determined that the amended rating criteria can be applied only for the period from and after the effective date of the regulatory change. The Board can apply only the former regulation to rate the disability for periods preceding the effective date of the regulatory change. However, the former rating criteria may be applied prospectively, beyond the effective date of the new regulation. See VAOPGCPREC 3-2000. Prior to the effective date of the revised rating criteria, the veteran's back disorder was evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5295, pertaining to lumbosacral strain. Under that provision, a 10 percent rating was for application where there is approximated characteristic pain on motion. Muscle spasm on extreme forward bending or loss of lateral spine motion is assigned a 20 percent disability rating. Severe lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion is assigned a 40 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2002). Also applicable at the time of receipt of the veteran's claim for an increased rating in October 2002 were the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5293, pertaining to intervertebral syndrome. Under these criteria, mild symptoms are rated as 10 percent disabling under Code 5293. A 20 percent rating is for assignment for moderate intervertebral disc syndrome, with recurrent attacks. A 40 percent evaluation is provided where there is evidence of severe recurring attacks with intermittent relief. A rating of 60 percent requires a pronounced disorder, with 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 diseased disc, with little intermittent relief. 38 C.F.R. § 4.71a, Diagnostic Code 5293. Effective September 26, 2003, a general rating formula for diseases and injuries of the spine provides that with or without symptoms such as pain, whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease the following ratings will apply. This formula encompasses current Diagnostic Code 5237 [lumbosacral strain]. Under these criteria: A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Code 5237 (2007). Also now applicable under 38 C.F.R. § 4.71a is the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Effective from September 2002, intervertebral disc syndrome is evaluated (preoperatively or postoperatively) either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 (combined ratings table) separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. A maximum 60 percent rating is warranted when rating based on incapacitating episodes, and such is assigned when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent rating is assigned for incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. Note 1 provides that for the purposes of evaluations under Diagnostic Code 5293, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. "Chronic orthopedic and neurological manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. Note 2 provides that when evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurological disabilities separately using evaluation criteria for the most appropriate neurological diagnostic code or codes. 67 Fed. Reg. 54345 (2002). Effective from September 2003, the diagnostic criteria for intervertebral disc syndrome was renumbered as Diagnostic Code 5243. The regulations remained the same in effect. However, there was some minor re-phrasing. In this respect, Diagnostic Code 5243 provided the following: Evaluate intervertebral disc syndrome (preoperatively or postoperatively) either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. It also deleted the old Note 2. As early as May 2002, the veteran was noted to have degenerative disc disease of the lumbar spine. In August 2006, a VA examiner opined that the lumbar degenerative disc disease was the result of the veteran's military service. The RO assigned a separate 10 percent disability rating for a disorder characterized as "impaired sensation in the left lower extremity radiculopathy as secondary to the service- connected disability of lumbar strain." The RO's findings are unclear in this respect. As a result of the September 2007 rating decision, the veteran's degenerative disc disease of the lumbar spine is service connected. While the basis of the assignment of a 10 percent rating for impaired sensation of the left lower extremity appears to have been linked to the veteran's service- connected lumbar strain, the medical evidence indicates that it is instead linked to the now service-connected degenerative disc disease. However, as late as May 2004, the RO advised the veteran through a Supplemental Statement of the Case that while diagnostic testing revealed disc bulging without herniation, "due to an intercurrent injury after service." In Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), it was held in part that 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 that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), VA must provide at least general notice of that requirement to the claimant. Given that the veteran has not been specifically advised that his lumbar spine degenerative disc disease is now service connected, the Board cannot ascertain whether he has had a meaningful opportunity to participate in the development of the claim, or would be prejudiced by its present adjudication of the issue on its merits. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Accordingly, the issue will be remanded for corrective notice. Pseudofolliculitis Barbae: The veteran's skin disorder is currently evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 7806, pertaining to dermatitis or eczema. The RO has assigned a 10 percent rating, effective August 31, 2006. Because the evidence as to the level of disability is unclear, the Board will remand the claim. See 38 C.F.R. § 4.2 (If the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.). In order for the veteran to receive a rating in excess of 10 percent under DC 7806, the medical evidence must show 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected; or systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12- month period. The veteran underwent a September 2004 VA examination regarding his skin condition. At the examination, the veteran reported that he had intermittent pseudofolliculitis barbae and acne and that on severe outbreaks he could not shave. The veteran denied having systemic symptoms. The examiner found that the veteran's skin disorder should not interfere with his ability to perform his job with a real estate mortgage company. Upon physical examination, the veteran was found to have lesions of his face and upper chest. The examiner noted approximately 50 percent of the veteran's exposed areas were effected with either lesions or spotting, and that all of the veteran's face and upper chest were affected. The examiner noted the presence of a few deep and superficial cystic lesions on the veteran's forehead, but noted no active lesions in the beard area. There was noted pitted scars and an area with mottled hyperpigmentation. The diagnosis was pseudofolliculitis barbae. While no photographs were submitted, the examiner specifically observed that there was "no disfigurement." The veteran underwent a September 1, 2006 VA skin examination. The physical examination findings confirmed the September 2004 VA examination in that the veteran was found to have pseudofolliculitis barbae with no disfigurement. However, the September 2006 VA examination report reflected that less than five percent of the veteran's total body and between 5 and 20 percent of exposed areas (head, face, neck, and hands) were affected by his pseudofolliculitis barbae condition. The examination reports of September 2004 and September 2006 present markedly different findings. While the former report would support the assignment of a 50 percent rating based on findings of 50 percent of exposed areas affected, its other findings suggest a less severe disorder. Conversely, the September 2006 findings are supportive of a 10 percent evaluation. As noted, under 38 C.F.R. § 4.2, if findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. Because of the widely divergent reports as to the severity of the skin disorder, the issue will be remanded. Accordingly, the case is REMANDED to the RO via the AMC for the following action: 1. As to both the claim for an increased rating for lumbar spine disability (lumbar strain and degenerative disc disease) and the claim pertaining to pseudofolliculitis barbae, the AMC/RO should issue a notice in compliance with Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). After so advising the veteran, the veteran should be afforded an appropriate period of time in which to submit additional evidence in support of the claims 2. After a reasonable amount of time, or after the veteran's response is received, the AMC/RO will return the claims folder, and a copy of this remand, to the examiner who authored the September 2006 VA skins disorders examination. The examiner will be requested to clarify the findings as are reported in the September 2004 skin disorders examination. Specifically, the examiner will clarify whether the severity of the skin disorder as to the degree of skin exposure was in error, correct or whether it represented a temporary flare-up of the skin disease. If the examiner is unable to respond to this inquiry; or if the examiner is no longer employed by VA, the AMC/RO will afford the veteran a further skin disorders examination, to ascertain the severity of the skin disorder. Any necessary clinical studies and tests should be accomplished. 3. The AMC/RO should take such additional development action as it deems proper with respect to the claims, including the conduct of any other appropriate VA examinations, and follow any applicable regulations and directives implementing the provisions of the VCAA as to its notice and development. Following such development, the RO/AMC should review and readjudicate the claims. See 38 C.F.R. § 4.2 (If the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.). The AMC/RO should also make specific findings as to the veteran's contentions regarding referral of the rating claims for extraschedular consideration under 38 C.F.R. §3.321(b).. If any such action does not resolve the claims, the RO/AMC shall issue the veteran a Supplemental Statement of the Case. Thereafter, the case should be returned to the Board, if in order. The veteran 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs