Citation Nr: 1007408 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 07-10 128A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an initial compensable evaluation for lumbar spine disability. 2. Entitlement to an initial evaluation in excess of 10 percent for gastric ulcer disability prior to September 30, 2008. 3. Entitlement to an evaluation in excess of 30 percent for gastric ulcer disability beginning on September 30, 2008. 4. Entitlement to an initial compensable evaluation for right foot disability. 5. Entitlement to an initial compensable evaluation for left foot disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The appellant served on active duty in the United States Army from November 1986 to July 2004, when he retired. (There also appears to have been a prior three-year period of active duty, but this has not been verified.) This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision issued by the above Department of Veterans Affairs (VA) Regional Office (RO) which, in part, granted service connection for lumbosacral strain, gastric ulcers and bilateral pes planus and bunions. The RO assigned an initial evaluation of 10 percent for the gastric ulcer disability and noncompensable evaluations for each of the other disabilities on appeal. In December 2009, a videoconference hearing was held between the above RO and the Board in Washington, DC, before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. In connection with that videoconference hearing, the appellant submitted additional evidence concerning his increased rating claims. This evidence consisted of copies of medical records from his private treating health care providers. The appellant has submitted a written waiver of iniytial review of that evidence by the RO. Therefore referral to the RO of the evidence received directly by the Board is not required. 38 C.F.R. § 20.1304. The appellant has appealed the initial ratings assigned for each one of these disabilities when service connection was granted. The appellant is, in effect, asking for higher ratings effective from the date service connection was granted. Consequently, the Board will consider the entire time period in question, from the original grant of service connection to the present, for each disability on appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). While the case was in appellate status, the appellant's disability evaluation for the gastric ulcer disability was increased from 10 percent to 30 percent, effective from September 30, 2008. However, it is presumed that the appellant was seeking the maximum benefit allowed by law and regulation for that disability, 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 (1993). Because the increase in the evaluation of the gastric ulcer disability did not represent the maximum rating available for the condition, the appellant's claim remained in appellate status. The Board notes that the second paragraph of the July 2009 Supplemental Statement of the Case (SSOC) and the second and third pages of the associated rating decision all indicate that the increased evaluation assigned for the appellant's gastric ulcer disability under Diagnostic Code 7307 (DC), Gastritis, is 20 percent, effective September 30, 2008. However, no 20 percent evaluation is available under that diagnostic code. The assigned evaluation should actually be 30 percent (as stated in pages 7 to 9 of the July 2009 SSOC) and therefore the issues on appeal are as listed on the first page, above. The issues of entitlement to initial compensable evaluations for the right and left foot disabilities are herein REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will provide notice when further action is required by the appellant. FINDINGS OF FACT 1. Throughout this claim and appeal, the appellant's lumbar spine disability has been manifested by pain and slight limitation of motion during flare-ups; he has been treated with muscle relaxants, anti-inflammatories and pain medications. 2. Throughout this claim and appeal, the appellant has not demonstrated ankylosis of the thoracolumbar spine, nor has he demonstrated forward flexion limited to 60 degrees or less or a combined range of thoracolumbar motion of not greater than 120 degrees. 3. No incapacitating episodes due to the lumbar spine disability have been demonstrated. 4. Since his separation from service in July 2004, the clinical findings relating to the appellant's gastric ulcer disability have approximately reflected chronic gastritis with multiple ulcerated areas and symptoms; severe hemorrhages or large ulcerated or eroded areas have not been clinically demonstrated. 5. The appellant's gastritis has not been manifested by periodic vomiting, recurrent hematemesis or melena with manifestations of anemia and weight loss productive of a considerable impairment of health at any time since July 31, 2004. 6. The appellant's gastritis has not been manifested by anemia and weight loss or recurring incapacitating episodes averaging ten days or more in duration at least four or more times per year at any time since July 31, 2004. 7. The appellant's gastritis has not been manifested by symptoms of vomiting, material weight loss and hematemesis or melena with moderate; or other symptom combinations productive of severe impairment of health at any time since July 31, 2004. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the appellant's favor, the criteria for an initial evaluation of 10 percent, but no higher, have been met for his lumbar spine disability. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.55, 4.59, 4.71a, Diagnostic Codes 5010, 5235-5243 (2009). 2. With resolution of reasonable doubt in the appellant's favor, the criteria for an initial evaluation of 30 percent, but no higher, have been met for his service-connected gastritis disability. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.321, 3.159, 4.1, 4.2, 4.7, 4.20, 4.114, Diagnostic Codes 7304, 7305, 7306, 7307, 7308, 7323, 7346 (2009). 3. The criteria for an initial evaluation in excess of 30 percent have not been met for the appellant's service- connected gastritis disability. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.321, 3.159, 4.1, 4.2, 4.7, 4.20, 4.114, Diagnostic Code s 7304, 7305, 7306, 7307, 7308, 7323, 7346 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (2009). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the decision of the United States Court of Appeals for Veterans Claims (Court), in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment and earning capacity, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). See Dingess v. Nicholson, supra. The appellant's lumbar spine and gastric ulcer increased rating claims arise from his disagreement with the initial evaluation that was assigned to those disabilities following the grant of service connection. Courts have held that, in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven. As a result, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Moreover, the United States Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the appellant has not demonstrated any prejudicial or harmful error in VCAA notice. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d). Here, the appellant's service treatment records (STRs) have been associated with the claims file. VA and private medical treatment records have also been associated with the claims file. The appellant was afforded VA medical examinations in July 2005 (general medical) and May 2009 (gastrointestinal). A medical opinion is adequate when it is based upon consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991). These examinations were conducted by a medical professional, and the associated reports reflect review of the appellant's prior medical history. The July 2005 examination included a report of the symptoms for the lumbar spine disability and demonstrated objective evaluations. The examiner was able to assess and record the condition of the appellant's lumbar spine. Physical examination was accomplished, including range of motion testing. The July 2005 examination and the May 2009 examination included a report of the symptoms for the gastric ulcer disability and demonstrated objective evaluations. The examiner was able to assess and record the appellant's chronic gastritis. The Board finds that the July 2005 and May 2009 examination reports were each sufficiently detailed with recorded history, impact on employment and daily life, and clinical findings. In addition, it is not shown that either examination was in any way incorrectly conducted or that the VA examiner failed to address the clinical significance of the appellant's back disability or his gastric ulcer disability. Further, each VA examination report addressed the applicable rating criteria. As a result, the Board finds that additional development by way of another examination would be redundant and unnecessary. See 38 C.F.R. § 3.326; 38 C.F.R. § 3.327; Green v. Derwinski, 1 Vet. App. 121 (1991). Therefore, the Board concludes that the appellant was afforded adequate examinations. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Furthermore, the appellant was informed about the kind of evidence that was required and the kinds of assistance that VA would provide and he was supplied with the text of 38 C.F.R. § 3.159. The appellant did not provide any information to VA concerning available relevant treatment records that he wanted the RO to obtain for him that were not obtained. He had previously been given more than one year in which to submit evidence after the RO gave him notification of his rights under the pertinent statute and regulations. The appellant was provided with notice as to the medical evidence needed for increased evaluations for lumbar spine and gastric ulcer disabilities, as well as the assistance VA would provide. Therefore, there is no duty to assist that was unmet and the Board finds no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of these claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). All relevant facts with respect to the lumbar spine and gastritis claims addressed in the decision below have been properly developed. Under the circumstances of this case, a remand would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in 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). II. The Merits of the Claims In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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 appellant, as well as the entire history of the appellant'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. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. 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. Evidence of the present levels of disability is found in the service medical treatment records; in the reports of VA and private outpatient treatment dated between 2006 and 2009; in the reports of the VA examinations conducted in July 2005, and May 2009; in the hearing testimony provided by the appellant in December 2009; and in various written statements submitted by the appellant and his representative. The appellant appealed the initial evaluations assigned for his lumbar spine and gastric ulcer disabilities addressed here. The Court held, in Fenderson v. West, 12 Vet. App. 119 (1999), that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then-current severity of the disorder. Cf. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In that decision, the Court also discussed the concept of "staging" ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the period(s) in question. The issue before the Board is consequently taken to include whether there is any basis for a higher rating for either disability at any pertinent time, to include whether a higher rating currently is in order. A. Lumbar spine disability The appellant contends that the severity of his lumbar spine orthopedic disability is not reflected in the currently assigned initial evaluation of zero percent. He testified at his December 2009 videoconference hearing that he had been prescribed Flexeril, pain medication and anti-inflammatory medication as part of his treatment for the back disability. He said that he experiences pain such that he can only sit for 15 minutes or stand for ten minutes. The appellant further testified that he could not walk for very long and that his back condition is incapacitating at times. He stated that he was finishing school to be an educator and that he had spent the better part of the previous two years in classrooms with children. Pursuant to regulatory provisions, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Where there is X-ray evidence of arthritis and limitation of motion, but not to a compensable degree under the diagnostic code, a 10 percent rating is for assignment for each major joint affected. 38 C.F.R. § 4.71, Diagnostic Codes 5003, 5010. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant on motion. Disability of the musculoskeletal system is the inability to perform normal working movement with normal excursion, strength, speed, coordination, and endurance, and that weakness is as important as limitation of motion, and that a part that becomes disabled on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, through atrophy, for example. The provisions of 38 C.F.R. §§ 4.45 and 4.59 also contemplate inquiry into whether there is limitation of motion, weakness, excess fatigability, incoordination, and impaired ability to execute skilled movements smoothly, and pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing are also related considerations. The Court has held that diagnostic codes predicated on limitation of motion require consideration of a higher rating based on functional loss due to pain on use or due to flare-ups. 38 C.F.R. §§ 4.40, 4.45, 4.59; Johnson v. Brown, 9 Vet. App. 7 (1997); and DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The diagnostic codes for rating diseases and injuries of the spine are found at 38 C.F.R. § 4.71a, DCs 5235 to 5243 (for, respectively, vertebral fracture or dislocation; sacroiliac injury and weakness; lumbosacral or cervical strain; spinal stenosis; spondylolisthesis or segmental instability; ankylosing spondylitis; spinal fusion; degenerative arthritis of the spine; and intervertebral disc syndrome). (Intervertebral disc syndrome will be rated under the general rating formula for the spine or under a formula for disc syndrome based on incapacitating episodes.) Id. A 10 percent evaluation will be assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, for a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, for muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, for a vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 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 40 percent evaluation will be assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation will be assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation will be assigned for unfavorable ankylosis of the entire spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. 68 Fed. Reg. 51,454, 51,456 (codified at 38 C.F.R. § 4.71a, DCs 5235 to 5243, Note (2)). (The combined range of motion refers to the sum of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined motion for the thoracolumbar spine is 240 degrees.) 68 Fed. Reg. 51,454, 51,456-58 (codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243). Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately. 68 Fed. Reg. 51,454, 51,456 (codified at 38 C.F.R. § 4.71a, DCs 5235 to 5243, Note (1)). Review of the appellant's service medical records reveals that he underwent a retirement examination in August 2003. He complained of recurrent back pain. Post-service, the appellant underwent a VA medical examination in July 2005. He reported that his back was never pain-free and that he would lose sleep due to his back pain on a nightly basis. The appellant also reported that flare-ups were caused by prolonged sitting, standing and any hard impact activity; he alleviated the pain by avoidance of such activities. On physical examination, there was no tenderness or muscle spasm in the lumbosacral area. The appellant walked, sat, stood and changed body positions in a normal fashion. He exhibited forward flexion of zero to 90 degrees; extension of zero to 35 degrees; right and left lateral flexion of zero to 40 degrees; and right and left rotation of zero to 35 degrees. Radiographic examination of the appellant's lumbar spine was normal. The examiner rendered a diagnosis of lumbosacral strain. Review of the appellant's medical treatment records reveals that he was treated in a VA facility on multiple occasions between March 2006 and February 2009. In April 2006, he complained of pain in his spine; he denied radiculopathy to either leg. During this period, the appellant was prescribed muscle relaxant and pain medication. He also had a TENS unit. In March 2007, a MRI test demonstrated the presence of a very small posterior disc bulge causing very mild spinal canal stenosis at the L4-5 level. A March 2008 primary care note indicates that the appellant reported 6/10 lumbar pain. On physical examination in February 2009, the appellant exhibited some pain with flexion and extension of his lumbar spine. The appellant underwent a VA medical examination in May 2009. He reported that he was presently in school. MRI testing was accomplished in a private facility in October 2009. The associated report indicates the existence of mild L4-5 disk bulging without nerve root impingement. No significant facet joint degenerative changes were evident. In summary, the evidence of record does demonstrate that the appellant has complained of serious back pain since his separation from service. For years, he has been prescribed medication by his VA health care providers to treat back spasms (Flexeril), as well as pain medication and anti- inflammatory medication. In addition, the appellant's statements about his pain, pain on use, additional restrictions during flare-ups and reduced range of motion are lay assertions which may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). See also Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). Another factor to consider is the degree of pain experienced by the claimant. With increasing levels of pain, concomitantly increasing degrees of muscle spasm, weakness, atrophy, inability to function, and the like, are expected. 38 C.F.R. §§ 4.40, 4.45, 4.59. The appellant has described his subjective complaints of worsening pain, and objective medical evidence has indicated that the appellant sought treatment for his spinal pain. As previously noted, 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, a 10 percent evaluation is warranted for muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour. Examining the evidence summarized above, and giving due consideration to the provisions under 38 C.F.R. § 4.59, as well as due consideration to the provisions of 38 C.F.R. §§ 4.7, 4.10 and 4.40, the medical evidence of record shows that the appellant's orthopedic spinal symptomatology does approximate the schedular criteria for an evaluation of 10 percent for the lumbar spine. The pain and functional limitations caused by the lumbar spine disorder are contemplated in the evaluation for the orthopedic symptomatology of the spinal segments that is represented by the 10 percent rating awarded herein. An evaluation in excess of 10 percent is not appropriate pursuant to the current rating criteria because the clinical evidence of record does not show an overall limitation of motion of the thoracolumbar spine that is less than 185 degrees. 38 C.F.R. § 4.71a, DCs 5235 to 5243. In order for an evaluation in excess of 10 percent to be awarded, the appellant would have to demonstrate forward flexion of the thoracolumbar spine less than 61 degrees or a combined range of motion not greater than 120 degrees; there is no clinical evidence of any such limitation of motion of the thoracolumbar spine. Nor is there any clinical evidence that the appellant has any ankylosis, whether favorable or unfavorable, of the thoracolumbar spine. Specifically, while the medical evidence of record shows that the appellant's range of thoracolumbar spine motion is restricted with activity, the restriction of his range of motion is not commensurate with the next higher rating. In the absence of further limitation of motion as enumerated above or ankylosis of any portion of the spine, an evaluation in excess of 10 percent is not warranted. In addition, the medical evidence does not show that the appellant's service-connected lumbar spine disability has caused any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment in order to warrant a separate rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, Note (1). The clinical evidence of record includes no findings of any neurological deficits emanating from any portion of the lumbar spine. The clinical evidence of record does not show that the appellant's service-connected lumbar spinal disability has included any objective neurologic abnormalities. Furthermore, no incapacitating episodes as defined by regulation are of record. There is no suggestion in the record that the appellant's pain and the functional loss caused thereby equates to any disability greater than contemplated by the current initial 10 percent rating assigned above. B. Gastric ulcer disability The appellant testified at his December 2009 videoconference hearing that he would have eight to ten episodes of gastritis per year and that these episodes would last a couple of weeks at a time. He said that the parameters of the episodes had not changed over the years. The appellant testified that his need for medication for treatment of his gastric ulcer disability had also remained constant over the years. There are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition. Consequently, certain coexisting diseases in this area, the relevant disability ratings for which are listed in the following paragraph, do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in 38 C.F.R. § 4.14. 38 C.F.R. § 4.113. Thus, ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. A severe disability caused by a duodenal ulcer, such that pain is only partially relieved by standard ulcer therapy, with periodic vomiting, recurrent hematemesis or melena and associated with manifestations of anemia and weight loss productive of definite impairment of health warrants a 60 percent disability rating. Moderately severe disability caused by a duodenal ulcer, manifested by impairment of health manifested by anemia and weight loss; or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year warrant a 40 percent rating. Moderate disability due to a duodenal ulcer involving recurring episodes of severe symptoms two or three times a year averaging 10 days in duration; or with continuous moderate manifestations warrants a 20 percent disability rating. Mild disability due to a duodenal ulcer, with recurring symptoms once or twice yearly, warrants a 10 percent disability rating. 38 C.F.R. § 4.114, Diagnostic Code 7305. A 10 percent evaluation is warranted for a mild marginal (which is to say, gastrojejunal) ulcer with brief episodes of recurring symptoms once or twice yearly. A 20 percent evaluation would require demonstrated evidence of a moderate marginal ulcer with episodes of recurring symptoms several times a year. These symptoms include vomiting, recurring melena or hematemesis, and weight loss. A 40 percent rating is for assignment when the ulcer is moderately severe, with intercurrent episodes of abdominal pain at least once a month partially or completely relieved by ulcer therapy, and with mild and transient episodes of vomiting or melena. The next higher rating of 60 percent is assigned when the ulcer is severe, and the same as pronounced with less pronounced and less continuous symptoms with definite impairment of health. A 100 percent schedular rating is assigned for ulcer disease which is pronounced, with periodic or continuous pain unrelieved by standard ulcer therapy with periodic vomiting, recurring melena or a hematemesis, and weight loss, so as to render the individual totally incapacitated. 38 C.F.R. § 4.114, Diagnostic Code 7306. A hiatal hernia resulting in persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health warrants a 30 percent disability rating. With two or more of the symptoms for the 30 percent evaluation of less severity, disability due to hiatal hernia warrants a 10 percent disability rating. A 60 percent evaluation is in order for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.114, DC 7346. The appellant's gastrointestinal disability has been evaluated by the RO pursuant to the provisions of Diagnostic Code 7307 (chronic hypertrophic gastritis), under which a 10 percent evaluation is assigned when there are small nodular lesions and symptoms. Chronic hypertrophic gastritis, with multiple small eroded or ulcerated areas, and symptoms, is rated 30 percent disabling. Chronic hypertrophic gastritis, with severe hemorrhages, or large ulcerated or eroded areas, is rated 60 percent disabling. Atrophic gastritis, which is a complication of a number of diseases, including pernicious anemia, is to be rated on the underlying condition. 38 C.F.R. § 4.114. Review of the appellant's service medical records reveals that he underwent an esophagogastroduodenoscopy (EGD) in October 1987. he was diagnosed with Type B gastritis with antral and gastric body inflammation. The duodenal bulb had inflammation and erosions. The appellant underwent another EGD in October 1997. Again, Type B gastritis was demonstrated. Post-service, the appellant underwent an EGD in January 2007. The findings included an antral ulcer, as well as scattered small ulcers in the duodenum. Similar findings were made at the time of the EGD accomplished in January 2009. The appellant underwent a VA medical examination in July 2005; he reported several episodes of minimal hematemesis and also melena, but he had not been hospitalized. He had not experienced lightheadedness or fainting. The appellant reported occasional epigastric pain and occasional mid- epigastric tenderness. He said that he was pain free about half of the time. On physical examination, the appellant's bowel sounds were normal. There was minimal epigastric tenderness. The examiner stated that the appellant's complete blood count (CBC) testing revealed normal results. Review of the appellant's VA and private treatment records dated between 2006 and 2009 reveals that he had reported experiencing fatigue, nausea, abdominal pain, diarrhea, constipation, black tarry stools and blood in his stools. He was taking medication for his gastritis symptoms. The appellant underwent another VA medical examination in May 2009. The examiner reviewed the claims file and noted that the Veteran had clear cut documentation of antral ulcers, gastritis, chronic active gastric ulcers and esophagitis. Noted symptoms included upper epigastric pain, acid taste in throat and occasional nausea, melena and vomiting. CBC testing was normal. The examiner stated that the appellant had had chronic recurrent stomach ulcers over the years and that these ulcers had been confirmed by a multitude of test reports. Given the foregoing, the Board finds that the clinical picture presented by the appellant's gastrointestinal condition has, since his separation from service, more closely approximated the symptoms listed under the 30 percent evaluation for gastritis under Diagnostic Code 7307. The Board has considered the appellant's statements that his gastritis disability is worse. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the appellant is competent to report symptoms, because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. See Robinson v. Shinseki, 557 F.3d 1355 (2009). Such competent evidence concerning the nature and extent of the appellant's gastritis disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which this disability is evaluated. As a result, the Board finds these records to be more probative than the appellant's subjective evidence of complaints of increased symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest in the outcome of a proceeding may affect the credibility of testimony). In sum, after a careful review of the evidence of record, the Board finds that the appellant's gastritis disability picture does not more nearly approximate a rating in excess of 30 percent. The clinical evidence of record does not show that the appellant's gastritis have been productive of definite or considerable impairment of health; there is no clinical evidence of anemia, vitamin deficiency, malnutrition or weight loss. In fact, while the appellant's weight was 150 pounds at the time of his August 2003 retirement examination, a February 2009 VA treatment note states that his weight was 160 pounds. Therefore, an evaluation in excess of 30 percent rating is not warranted. The findings set forth above most closely approximate those necessary for the 30 percent evaluation; these findings have been reflected in the clinical record going back to the date of the Veteran's separation from service. The findings needed for the next higher evaluation are not currently demonstrated and have not been demonstrated at any point since July 31, 2004. Based upon the guidance of the Court in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board has considered whether a staged rating is appropriate. As reflected in the decision above, the Board did not find variation in the appellant's gastrointestinal symptomatology or clinical findings that warrant the assignment of any staged ratings for the gastritis disability. Furthermore, there is no indication that the appellant has been service-connected for a gastrojejunal ulcer, or for ulcerative colitis, or for any other digestive tract problem for which an evaluation in excess of 30 percent may be assigned. 38 C.F.R. § 4.114. C. Other considerations Notwithstanding the above discussion, increased evaluations for the pes planus and right ankle disability could be granted if it were demonstrated that the particular disability presented such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). Given the appellant's complaints associated with employment, the Board has considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b)(1). See Barringer v. Peake, 22 Vet. App. 242 (2008). The record reflects that the appellant has not required any hospitalization for the service-connected disabilities at issue, and that the manifestations of each disability are not in excess of those contemplated by the currently assigned 10 percent and 30 percent ratings. Furthermore, although the appellant experiences occupational impairment, there is no indication in the record that the average industrial impairment from either disability would be in excess of that contemplated by the assigned ratings. The Court has held that, "if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required." Thun v. Peake, 22 Vet. App. 111, 115 (2008). The Board finds no evidence that either the lumbar spine disability or the gastric ulcer disability presents such an unusual or exceptional disability picture as to require an extraschedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b). As discussed above, there are higher ratings available for these disabilities, but the required manifestations had not been shown in this case. The Board further finds no evidence of an exceptional disability picture in regard to either the lumbar spine disability or the chronic gastritis disability. The appellant has not required any hospitalization for these disabilities; nor has he required any extensive treatment. The Veteran has not offered any objective evidence of any symptoms due to either disability that would render impractical the application of the regular schedular standards. He has reported that he has been attending school rather than working; there is no evidence of record to indicate that he has encountered any problems with his school attendance. Consequently, the Board concludes that referral of this case for consideration of an extraschedular rating for the lumbar spine disability or the gastric ulcer disability is not warranted in this case. See Floyd v. Brown, 8 Vet. App. 88, 96 (1996); Bagwell v. Brown, 9 Vet. App. 337, 338-339 (1996) (when evaluating an increased rating claim, it is well established that the Board may affirm an RO's conclusion that a claim does not meet the criteria for submission for an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1), or may reach such a conclusion on its own). In this case, the pain and limitation of motion described by the appellant fit squarely within the criteria found in the relevant rating scheme for lumbar spine disabilities. Likewise, the symptomatology of the gastric ulcer disability fits squarely within the relevant rating scheme for gastritis. In short, the rating criteria contemplate not only the appellant's symptoms but the severity of each disability. For these reasons, referral for extraschedular consideration is not warranted for either the lumbar spine disability or the gastric ulcer disability. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, the appellant has not alleged unemployability. Furthermore, as reflected by the May 2009 VA medical examination report and the December 2009 videoconference hearing testimony, the appellant has been attending school in pursuit of a college degree in education instead of working. Therefore, the Board finds that no further consideration of a TDIU award is warranted. The Board acknowledges that the appellant, in advancing this appeal, believes that his disabilities have been more severe than the assigned disability ratings reflect. He maintains that he experiences problems with his low back and gastrointestinal system that are due to the lumbar spine and gastric ulcer disabilities. Medical evidence is generally required to probatively address questions requiring medical expertise; lay assertions do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay assertions may serve to support a claim by supporting the occurrence of lay- observable events or the presence of symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, supra. See also Davidson v. Shinseki, supra. The Board has carefully considered the Veteran's contentions. In this case, however, the competent medical evidence offering the specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the lumbar spine and gastric ulcer disabilities on appeal. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the lumbar spine and gastrointestinal disability symptoms. The preponderance of the most probative evidence does not support assignment of any higher ratings. Finally, based upon the guidance of the Court in Fenderson v. West, 12 Vet. App. 119 (1999), the Board has considered whether any staged rating is appropriate for the claimed disabilities. As reflected in the decision above, the Board has not found variation in the Veteran's symptomatology or clinical findings for either the lumbar spine disability or the gastric ulcer disability that would warrant the assignment of any staged rating for these disabilities, as the Court has indicated can be done in this type of case. Based upon the record, the Board finds that at no time during the claim/appellate period has either the lumbar disability or the gastric ulcer disability on appeal been more disabling than as currently rated. ORDER An initial evaluation of 10 percent for the lumbar spine disability is granted, effective in August 2004, subject to the law and regulations governing the award of monetary benefits. An initial evaluation of 30 percent for the gastritis disability is granted, effective in August 2004, subject to the law and regulations governing the award of monetary benefits. REMAND A determination has been made that additional development is necessary with respect to the two remaining issues on appeal. Accordingly, further appellate consideration will be deferred and this case remanded to the AMC/RO for action as described below. The fulfillment of the VA's statutory duty to assist veterans includes providing additional VA examination when warranted, and conducting a thorough and contemporaneous medical examination which takes into account the records of prior medical treatment so that the disability evaluation will be a fully informed one. See Hyder v. Derwinski, 1 Vet. App. 221 (1991); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). In this case, the appellant has not had a VA compensation and pension examination specific to pes planus and bunions since July 2005. The Court has held that when the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (a veteran is entitled to a new examination after a two-year period between the last VA examination and the veteran's contention that the pertinent disability has increased in severity). Under the circumstances, the Board is of the opinion that a VA examination should be scheduled to determine the current status of the service-connected bilateral pes planus and bunion disabilities. Furthermore, the evidence of record now contains some treatment records from a private podiatrist. A December 2009 report from that podiatrist states that the appellant demonstrated increased pronation with weight-bearing; bilateral plantar fasciitis; a resting calcaneal stance position 2 everted bilaterally; and positive resupination with toe raises. Radiographic examination revealed decreased calcaneal inclination angle; increased talar adduction; and plantar flexion. However, there is no medical opinion of record to guide the Board in interpreting these clinical findings vis-à-vis the rating criteria for pes planus and bunions. VA is, therefore, on notice of records that may be probative of the claim. See Robinette v. Brown, 8 Vet. App. 69 (1995). VA has a responsibility to obtain records generated by Federal government entities that may have an impact on the adjudication of a claim. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore in order to fulfill the duty to assist, all of the appellant's private and VA treatment records relating to his bilateral foot disabilities should be obtained and associated with the claims file. These considerations require further investigation by medical professionals, inasmuch as the Board is prohibited from substituting its own unsubstantiated medical opinions. See Colvin v. Derwinski, Vet. App. 171, 175 (1991). In addition, the duty to assist includes obtaining medical records and examinations where indicated by the facts and circumstances of an individual case. See Murphy v. Derwinski, 1 Vet. App. 78 (1990). The Court has stated that the Board's task is to make findings based on evidence of record - not to supply missing facts. Beaty v. Brown, 6 Vet. App. 532 (1994). Thus, where the record before the Board is inadequate to render a fully informed decision, a remand is required in order to fulfill its statutory duty to assist the appellant to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). To ensure that VA has met its duty to assist in developing the facts pertinent to the claim on appeal and to afford full procedural due process, the case is REMANDED for the following: 1. The AMC/RO must assure itself that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A, the implementing regulations found at 38 C.F.R. § 3.159 and any other applicable legal precedent has been completed. 2. The AMC/RO should contact the appellant to obtain the names and addresses of all post-service medical care providers (private, VA, or other government) who have treated him for any of his bilateral foot disabilities. After securing the necessary release(s), the AMC/RO should obtain all associated records not already of record. In particular, the records from the appellant's private treating podiatrist must be obtained. To the extent an attempt to obtain any of these records is unsuccessful, the claims file should contain documentation of the attempts made. The appellant and his representative should also be informed of the negative results and be given opportunity to secure the records. 3. After completing any additional notification and/or development action deemed warranted by the record, the AMC/RO should schedule the appellant for examination by a VA podiatrist or orthopedist in order to determine the status of the appellant's bilateral foot disabilities. This examination of the appellant's feet is for the purpose of evaluating the nature, severity, and extent of that service-connected pes planus and bunions since his separation from service in July 2004. The examiner must review the Veteran's claims file in connection with the examination. All appropriate tests and X-rays should be conducted and the examiner should review the results of any testing (VA or private) prior to completion of the report. The examiner should comment on the nature and extent of any right or left foot disorder and describe all pathology present since the Veteran discharge from service in July 2004. The examination report should include a detailed account of all manifestations of right and left foot pathology present since July 2004, including any arthritis, limitation of motion of the ankle or foot, existence of callosities or the existence of any other defects. The examiner should determine the nature, extent and current symptomatology of the appellant's right and left foot defects. Special attention should be given to the presence or absence of pain, any limitation of motion, instability, weakness, interference with gait, balance or propulsion, pain and/or swelling on use, and the need for, or effect of, the use of shoe inserts or a special shoe. The examiner should clearly identify which symptomatology is associated with the appellant's pes planus, which is due to the bunions and which symptomatology is associated with any other disorder. The examiner should explain whether or not the clinical findings in the July 2005 VA examination report, in the December 2009 private podiatrist report and in the current examination reflect the existence of: a. marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances; or b. marked deformity (pronation, adduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities; or c. moderate symptoms such as weight-bearing over or medial to the great toe, inward bowing of the tendo Achillis, pain on manipulation and use of the feet; or d. resection of either metatarsal head; or e. severe right or left hallux valgus equivalent to the amputation of a great toe. The examiner should identify the information on which the opinion is based. The opinion should adequately summarize the relevant history and clinical findings, and provide a detailed explanation as to all medical conclusions rendered. If any opinion and supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon mere conjecture, the examiner should clearly and specifically so specify in the report, and explain why this is so. 4. The AMC/RO should review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 5. Upon receipt of the VA medical examination report(s), the AMC/RO should conduct a review to verify that all requested opinions have been offered. If information is deemed lacking, the AMC/RO should refer the report to the VA examiner(s) for corrections or additions. 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 examination report as inadequate for evaluation purposes.). 6. Thereafter, the AMC/RO should consider all of the evidence of record and re-adjudicate the appellant's right and left foot increased initial rating claims. The readjudication should reflect consideration of all the evidence of record and be accomplished with application of all appropriate legal theories, including all pertinent versions of the regulations, all applicable diagnostic codes, and whether a separate rating or staged rating for any manifestation of any disability is warranted. 7. If any benefit sought on appeal remains denied, the appellant and his representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the initial increased rating issues currently on appeal. An appropriate period of time should be allowed for response. 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). The appellant is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ___________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs