Citation Nr: 1010165 Decision Date: 03/17/10 Archive Date: 03/24/10 DOCKET NO. 08-29 714 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Entitlement to a higher initial rating for lumbar degenerative joint disease, currently evaluated as 10 percent disabling. 2. Entitlement to a higher (compensable) rating for right knee chondromalacia. 3. Entitlement to a higher (compensable) rating for bilateral plantar fasciitis. 4. Entitlement to earlier effective date prior to August 23, 2006 for the grant of service connection for lumbar degenerative joint disease. 5. Entitlement to earlier effective date prior to August 23, 2006 for the grant of service connection for right knee chondromalacia. 6. Entitlement to earlier effective date prior to August 23, 2006 for the grant of service connection for bilateral plantar fasciitis. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran served on active duty from May 1978 to April 1981, and from December 2003 to January 2005. This case comes to the Board of Veterans' Appeals (Board) on appeal from an April 2008 decision by the RO in Waco, Texas that granted service connection and a 10 percent rating for lumbar degenerative joint disease, and granted service connection and noncompensable ratings for right knee chondromalacia and for bilateral plantar fasciitis. The Veteran appealed for higher ratings. The issues of entitlement to earlier effective dates prior to August 23, 2006 for the grant of service connection for the above disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's low back disability is productive of complaints of pain; objectively, she had forward flexion of the lumbar spine to approximately 70 degrees, at worst, with no spasm or ankylosis. 2. The Veteran's right knee chondromalacia is manifested by normal extension and flexion limited no more than 114 degrees), and complaints of pain. There is no instability or subluxation. 3. The Veteran's bilateral plantar fasciitis is manifested by pain on use of the feet and without marked deformity, pain on manipulation and use accentuated, indication of swelling on use or characteristic callosities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for service-connected lumbar degenerative joint disease have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.71a, Diagnostic Code 5242 (2009). 2. The criteria for a compensable rating for right knee chondromalacia have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261 (2009). 3. The criteria for a 10 percent initial rating, but not higher, for bilateral plantar fasciitis have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the appellant complete pre-adjudication notice by letters dated in September and November 2006. In cases such as this, 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, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 473; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008). That burden has not been met in this case. Nevertheless, the record reflects that the appellant was provided a meaningful opportunity to participate effectively in the processing of her claim such that the notice error did not affect the essential fairness of the adjudication now on appeal. The appellant was notified that her claims were awarded with an effective date of August 23, 2006, the date of her claim. She was provided notice how to appeal that decision, and she did so. She was provided with letters and a statement of the case that advised her of the applicable law and criteria required for a higher rating. Moreover, the record shows that the appellant was represented by a Veteran's Service Organization and its counsel throughout the adjudication of the claims. Overton v. Nicholson, 20 Vet. App. 427 (2006). Thus, based on the record as a whole, the Board finds that a reasonable person would have understood from the information that VA provided to the appellant what was necessary to substantiate her claim, and as such, that she had a meaningful opportunity to participate in the adjudication of her claim such that the essential fairness of the adjudication was not affected. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). VA has obtained service treatment records, assisted the appellant in obtaining evidence, afforded the appellant physical examinations, and obtained medical opinions as to the etiology and severity of disabilities. On that note, the Board also recognizes that the VA examination reports of record are adequate for rating purposes. The reports of record contain sufficiently specific clinical findings and informed discussion of the pertinent history and features of the disability to provide probative medical evidence for rating purposes. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. Law and Regulations The Veteran contends that her lumbar degenerative joint disease, right knee disability, and bilateral plantar fasciitis are more disabling than currently evaluated. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. (1991). Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In rating musculoskeletal disabilities, it is appropriate to consider additional limitation of function due to factors such as pain, weakness, incoordination and fatigability of the joint. See 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Lumbar Degenerative Joint Disease Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made 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 RO has rated the Veteran's lumbar degenerative joint disease as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5242 (degenerative arthritis of the spine). Under these rating criteria, the Veteran will only be entitled to an increased, 20 percent rating, for her lumbar strain if it is manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, if the combined range of motion of the thoracolumbar spine not greater than 120 degrees, or if muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a. A 40 percent rating will be assigned if forward flexion of the thoracolumbar spine is degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. (Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. Lewis v. Derwinski, 3 Vet. App. 259 (1992).) With the above criteria in mind, the Board notes that on VA examination in October 2007, the Veteran complained of daily low back pain at a level of 6 or 7 out of 10, which flared up to 10/10 approximately once a month when she was bending over to clean out bathtubs. She denied radicular pain symptoms. She denied any physician-prescribed bed rest in the past year. On examination, the Veteran walked without antalgic gait, and had normal spinal curvature. There was tenderness of the lower lumbar spinous processes in bilateral lumbar paravertebral muscles without spasm. There was no tenderness of the sacroiliac joint or sciatic notch. Lumbar range of motion was as follows: forward flexion to 70 degrees, extension to 30 degrees, left and right lateral flexion to 10 degrees, and left and right lateral rotation to 30 degrees. All ranges of motion were identical after repetitive motion except for right lateral flexion which was reduced by 2 degrees. The Veteran complained of pain at the extremes of motion in each plane. There was no apparent weakness, fatigability or loss of coordination during or following 3 repetitions of range of motion. An X-ray study of the lumbar spine showed evidence of loss of lumbar lordosis, and minimal degenerative change with osteophytosis. The examiner diagnosed lumbar degenerative joint disease. A higher 20 percent rating is not warranted for lumbar degenerative joint disease, as forward flexion of the thoracolumbar spine was 70 degrees (i.e., greater than 60 degrees), and the combined range of motion of the thoracolumbar spine was greater than 120 degrees. Moreover, the medical evidence does not demonstrate that there was muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis. Ankylosis was not shown. 38 C.F.R. § 4.71a, Diagnostic Code 5242. The Board acknowledges that in evaluating musculoskeletal disabilities, consideration must be given to additional functional limitation due to factors such as pain, weakness, fatigability, and incoordination. See 38 C.F.R. §§ 4.40 and 4.45 and DeLuca, 8 Vet. App. at 206-07. In this regard, the record indicates consistent complaints of low back pain. In addition to the Veteran's subjective complaints, the record also objectively demonstrates pain and limitation of function of the low back. VA examination in October 2007 revealed that range of lateral motion was slightly limited after repetitive use. Even considering additional functional limitation due to factors such as pain and fatigue, the overall evidence does not indicate a disability picture comparable to the criteria for the next-higher 20 percent evaluation, during the period prior to May 10, 2006. Indeed, the objective findings show forward flexion well in excess of 60 degrees, with no muscle spasm or ankylosis. Although some limitation of function has been demonstrated, such is found to be appropriately contemplated in the 10 percent evaluation in effect. The evidence does not establish that the Veteran has intervertebral disc syndrome or incapacitating episodes, as defined by Note 1 to Diagnostic Code 5243. As such, Diagnostic Code 5243 cannot serve as a basis for an increased rating on the basis of incapacitating episodes. The Board finds that an evaluation in excess of 10 percent under the general rating formula is not for application here. There are no other relevant code sections for consideration. Note (1) of the general rating formula instructs the rater to separately evaluate any associated objective neurologic abnormalities under an appropriate Diagnostic Code. In the present case the Board notes that the VA examination in October 2007 revealed no significant neurological abnormalities. Specifically, strength, sensation and reflexes were all normal in the lower extremities and straight leg raise was negative. Given the foregoing, the overall evidence reveals an essentially normal neurologic disability picture throughout the rating period on appeal. Accordingly, assignment of a separate evaluation for neurologic manifestations of the low back disability is not warranted here. In sum, a rating in excess of 10 percent is not warranted for the Veteran's lumbar degenerative joint disease throughout the rating period on appeal and there is no support for assignment of a separate neurologic evaluation. As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine is inapplicable, and the claim must be granted. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Right Knee Chondromalacia The RO has rated the Veteran's right knee chondromalacia as noncompensable under Diagnostic Code 5010, pertaining to traumatic arthritis. Under 38 C.F.R. § 4.71a, Diagnostic Code 5010, arthritis due to trauma, substantiated by X-ray findings, is rated as degenerative arthritis. Under Diagnostic Code 5003, degenerative arthritis is rated based on limitation of motion of the affected joint. Normal ranges of motion of the knee are to zero degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5260 concerns limitation of leg flexion. A noncompensable evaluation is assigned where flexion is limited to 60 degrees. A 10 percent rating is warranted where flexion is limited to 45 degrees. A 20 percent evaluation is for application where flexion is limited to 30 degrees. Finally, a 30 percent rating applies where flexion is limited to 15 degrees. Diagnostic Code 5261, pertaining to limitation of leg extension, is also of relevance here. Under that Code section, a noncompensable evaluation is assigned where extension is limited to 5 degrees. A 10 percent rating is warranted where extension is limited to 10 degrees. A 20 percent evaluation is for application where extension is limited to 15 degrees. A 30 percent rating applies where extension is limited to 20 degrees. A 40 percent rating is warranted where extension is limited to 30 degrees. Finally, a 50 percent evaluation is warranted where extension is limited to 45 degrees. Diagnostic Code 5257 provides for assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability, a 20 percent rating when there is moderate recurrent subluxation or lateral instability, or a 30 percent evaluation for severe knee impairment with recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. At an October 2007 VA examination, the Veteran complained of mechanical pain of the medial joint line area of the right knee. She said the pain was 4/10 in intensity usually following prolonged weightbearing which lasted for 1-2 days. She said she experienced effusion approximately twice per month, and denied any knee instability symptoms. On examination, the Veteran walked without an antalgic gait, and used no orthopedic assistive devices. On examination of the right knee, the knee was normal-appearing without effusion, and no surgical scars. Skin color and temperature were normal, and there was no ligamentous laxity. McMurray's test was negative. Range of motion of the right knee was from 0 to 114 degrees pre-repetitive motion, and there was no apparent pain, weakness, fatigability or loss of coordination during or following 3 repetitions of range of motion. An X- ray study of the right knee showed normal alignment, with no acute fractures or dislocations. There was minimal narrowing of the medial joint space. The diagnostic assessment was right knee chondromalacia. With respect to the Veteran's service-connected right knee chondromalacia, the range of motion findings detailed above do not support the next-higher 10 percent evaluation for either flexion or extension of the right knee under Diagnostic Codes 5260 and 5261. In the present case, the evidence of record reveals complaints of right knee pain. Indeed, while right knee pain is recognized, the objective evidence simply fails to demonstrate that such pain has resulted in additional functional limitation comparable to the next-higher 10 percent rating under Diagnostic Codes 5260 or 5261. See DeLuca, supra. Throughout the rating period on appeal, there is no medical evidence of recurrent subluxation or instability such as to warrant assignment of a 10 percent evaluation under Diagnostic Code 5257. In fact, on VA examination in October 2007, the Veteran denied right knee instability. Hence, a higher rating is not warranted under this code, and a separate rating for instability is also not warranted. See VAOPGCPREC 23-97, 9-98. The Board has also considered whether an increased rating for the right knee is warranted under any alternate diagnostic code. However, as the evidence fails to establish ankylosis, Diagnostic Code 5256 is not for application. Similarly, as the evidence fails to demonstrate impairment of the tibia or fibula, a higher rating is not possible under Diagnostic Code 5262. Finally, as there is no showing of genu recurvatum, Diagnostic Code 5263 is inapplicable. There are no other relevant code sections for consideration. Therefore, the Board finds that the preponderance of the evidence is against the claim for a higher rating for right knee chondromalacia, and the appeal must therefore be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102, Gilbert, supra. Bilateral Plantar Fasciitis The RO has rated the Veteran's plantar fasciitis of both feet as noncompensable under Diagnostic Code 5279, pertaining to metatarsalgia. Under this code, anterior metatarsalgia (Morton's disease), unilateral or bilateral, is rated 10 percent disabling. The RO has apparently rated the Veteran's bilateral plantar fasciitis by analogy, as the rating schedule does not contain a diagnostic code for plantar fasciitis. See 38 C.F.R. § 4.20. The assignment of a particular diagnostic code, however, is dependent on the facts of a particular case. See Butts v. Brown, 5 Vet. App. 532 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Diagnostic Code 5284 provides for evaluating other foot injuries as 30 percent disabling if severe, 20 percent if moderately severe, and 10 percent if moderate. 38 C.F.R. § 4.71a, Diagnostic Code 5284. Under Diagnostic Code 5276, a 10 percent rating is warranted for flatfoot, acquired, moderate; weight-bearing line over or medial to the great toe, inward bowing of the tendo-Achilles, pain on manipulation and use of the feet, bilateral or unilateral. A 30 percent evaluation is assigned respectively for severe bilateral acquired flatfoot, with objective evidence of marked deformity, pain on manipulation and use accentuated an indication of swelling on use, and characteristic callosities. A 50 percent evaluation is assigned for pronounced bilateral acquired flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achilles on manipulation, not improved by orthopedic shoes or appliances. Id. The Board notes that words such as "severe" and "moderate" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C.A. § 7104; 38 C.F.R. §§ 4.2, 4.6. A January 2006 VA X-ray study of the feet was normal. A July 2007 VA podiatry consult reflects that the Veteran complained of bilateral foot pain, primarily in the morning. On examination, there was no edema, and there was pain to palpation of the bilateral plantar medial fascial band. The diagnosis was bilateral plantar fasciitis. At an October 2007 VA examination, the Veteran complained of bilateral foot pain, particularly at the plantar arch and the calcaneal insertions. She said that her foot pain was at a level of 8 out of 10 on a daily basis, and that she had 10/10 pain two or three times per week, usually associated with prolonged walking or standing, which lasted for 6 to 8 hours. She used off-the-shelf plantar arch supports. On general examination, the Veteran was obese and used no orthopedic assistive devices. On examination of her feet, bilateral plantar, transverse, and longitudinal arches were present and well-maintained. There was tenderness of the mid-arch and calcaneal insertions bilaterally. There was no hallux valgus, and no hammer or clawtoe formation. Bilaterally the Achilles tendons were intact and of normal alignment, and were minimally tender to palpation at the calcaneal insertions. The diagnostic assessment was bilateral feet plantar fasciitis. A March 2008 VA podiatry consult reflects that the Veteran complained of bilateral foot pain which was better since receiving injections, but not completely resolved. She was now wearing custom inserts with little improvement of pain. On examination, there was no edema, and there was reduced pain to palpation of the bilateral plantar medial fascial band. The diagnostic assessment was plantar fasciitis, bilaterally. After review of the record, the Board finds that the most appropriate diagnostic code for evaluating the Veteran's bilateral plantar fasciitis is Diagnostic Code 5276, for acquired flatfoot because the resulting symptoms are more analogous to foot disorder symptoms: pain on ambulation, pain on palpation, and deformity of the foot or toes. See 38 C.F.R. § 4.20; 38 C.F.R. § 4.71a, Diagnostic Codes 5276-84 (2008). See Tedeschi v. Brown, 7 Vet. App. 411 (1995). The Board further finds that an initial 10 percent rating is warranted throughout the rating period on appeal for the Veteran's bilateral plantar fasciitis because there is evidence that the plantar fasciitis is manifested by pain with use and manipulation of the feet. The Board finds that her foot symptomatology most nearly approximates the criteria for a 10 percent rating under Diagnostic Code 5276. A rating in excess of 10 percent is not warranted at any time during the course of the appeal, as the record does not show objective evidence of marked deformity, pain on manipulation and use accentuated, indication of swelling on use or characteristic callosities. In considering the potential application of Diagnostic Code 5284, the Board finds that the 2007 VA examination report presents no findings otherwise demonstrating a "moderately severe" disability of the feet, as required for a 20 percent rating. The findings discussed above, even expressly accounting for functional deficits, do not expressly or implicitly characterize the clinical severity of the Veteran's service-connected bilateral plantar fasciitis as "moderately severe" nor does any other aspect of the VA examination report or treatment records otherwise show such severity of disability of the feet. The Board has further reviewed the entirety of the evidence, including VA medical treatment records, pertaining to the period on appeal for this claim involving the Veteran's plantar fasciitis. However, no other report of record contains evidence contrary to the VA examination report findings, nor is there any other evidence specific to the Veteran's foot disabilities which otherwise demonstrates the level of severity of symptomatology necessary to warrant assignment of a rating in excess of 10 percent in this case. The Board acknowledges the Veteran's contentions regarding the symptomatology she experiences associated with her bilateral plantar fasciitis. The Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to her through her senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, as a lay person, she is not competent to offer opinions on medical issues such as the clinical severity of a disability as measured through diagnostic indicators. See Espiritu v. Derwinski, 2 Vet. App. 482 (1992); Moray v. Brown, 5 Vet. App. 211 (1993). The clinical evidence for review indicates that the Veteran does not meet the schedular criteria for a rating in excess of 10 percent for the bilateral plantar fasciitis. In sum, the Board finds that a higher 10 percent rating is warranted for service-connected bilateral plantar fasciitis, throughout the rating period on appeal. Extraschedular Rating The Veteran has not contended that these service-connected disabilities cause marked interference with employment, and she was reportedly employed as a child care worker. The record does not establish that the rating criteria are inadequate for rating the Veteran's service-connected back, right knee or foot disabilities. The competent medical evidence of record shows that the disabilities are primarily manifested by pain, tenderness and limitation of motion. Many of the applicable diagnostic codes used to rate the Veteran's disabilities provide for ratings based on those findings. The effects of pain and functional impairment have been taken into account and are considered in applying the relevant criteria in the rating schedule. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. The effects of the Veteran's disabilities have been fully considered and are contemplated in the rating schedule; hence, referral for an extraschedular rating is unnecessary at this time. See Barringer v. Peake, 22 Vet. App. 242 (2008); Thun v. Peake, 22 Vet. App. 111, 115 (2008). ORDER A rating higher than 10 percent for the Veteran's service- connected lumbar degenerative joint disease is denied. A higher compensable rating for service-connected right knee chondromalacia is denied. A 10 percent rating is granted for bilateral plantar fasciitis, subject to regulations governing the payment of monetary benefits. REMAND In its April 2008 rating decision, the RO granted service connection, effective August 23, 2006, for lumbar degenerative joint disease, chondromalacia of the right knee, and bilateral plantar fasciitis. In her July 2008 notice of disagreement, the Veteran specifically contended that an earlier effective date should have been assigned for the grants of service connection. That statement is a timely notice of disagreement as to the effective date assigned for these disabilities. Where a notice of disagreement has been filed with regard to an issue, and a statement of the case has not been issued, the appropriate Board action is to remand the issue to the RO for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). The claims are being remanded for issuance of a statement of the case and to give the Veteran the opportunity to complete an appeal. 38 U.S.C.A. § 7105; 38 C.F.R. § 19.26. Accordingly, the case is REMANDED for the following action: Issue a statement of the case to the Veteran and her representative, addressing the issue of entitlement to an effective date prior to August 23, 2006 for the grants of service connection for lumbar degenerative joint disease, chondromalacia of the right knee, and bilateral plantar fasciitis. The Veteran and her representative must be advised of the time limit in which she may file a substantive appeal. 38 C.F.R. § 20.302(b). Then, only if an appeal is timely perfected, should the issues be returned to the Board for further appellate consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs