Citation Nr: 1031464 Decision Date: 08/20/10 Archive Date: 08/24/10 DOCKET NO. 06-08 845 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for herniated nucleus pulposus (HNP), L4-L5, status post-operative. 2. Entitlement to service connection for bilateral leg disorder, to include as secondary to service-connected low back disability. 3. Entitlement to service connection for right knee disorder, to include as secondary to service-connected low back disability. 4. Entitlement to service connection for left knee disorder, to include as secondary to service-connected low back disability. 5. Entitlement to service connection for right hip disorder, to include as secondary to service-connected low back disability. 6. Entitlement to service connection for left hip disorder, to include as secondary to service-connected low back disability. 7. Entitlement to service connection for bilateral ankle disorder, to include as secondary to service-connected low back disability. 8. Entitlement to service connection for bilateral foot disorder, to include as secondary to service-connected low back disability. 9. Entitlement to an increased rating for service-connected lumbosacral strain, currently evaluated as 40 percent disabling. 10. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 11. Entitlement to service connection for neck disorder. 12. Entitlement to service connection for bilateral shoulder disorder. 13. Entitlement to service connection for gastroesophageal reflux disease. 14. Entitlement to service connection for depression. 15. Entitlement to service connection for gastrointestinal disorder (also claimed as intestinal bleeding, hemorrhoids). 16. Entitlement to service connection for erectile dysfunction. 17. Entitlement to service connection for headaches. 18. Entitlement to service connection for hypertension. 19. Entitlement to service connection for hyperlipidemia (to include obesity). 20. Entitlement to service connection for chest pain (to include side effects of medication). 21. Entitlement to service connection for anemia. 22. Entitlement to service connection for sleep disorder. 23. Entitlement to a temporary total evaluation based on surgery and or convalescence for a total right knee replacement. REPRESENTATION Appellant represented by: Winston P. Alcendor, Agent WITNESS AT HEARING ON APPEAL Veteran INTRODUCTION The Veteran served on active duty from January 1978 to September 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran perfected an appeal of that rating determination to the Board. In January 2007, the Veteran testified at a Board videoconference hearing before the undersigned Acting Veterans Law Judge. A transcript of this hearing is associated with the claims folder. In a September 2007 decision, the Board denied the claims. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In June 2009, the Court issued a memorandum decision, and affirmed the Board's decision denying a disability rating higher than 20 percent prior to July 19, 2004 for service connected lumbosacral strain but vacated the Board's decision as to the remaining issues and remanded the matter to the Board for further proceedings consistent with its decision. The case was subsequently returned to the Board. The issues of entitlement to service connection for neck disorder, bilateral shoulder disorder, gastroesophageal reflux disease, depression, gastrointestinal disorder, erectile dysfunction, headaches, hypertension, hyperlipidemia, chest pain, anemia, and sleep disorder and entitlement to a temporary total evaluation based on surgery and or convalescence for a total right knee replacement are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. Resolving all reasonable doubt in favor of the Veteran, HNP, L4-L5, status post-operative is etiologically related to an incident of his military service. 2. Radiculopathy to the right lower extremity manifested by pain, tingling sensation, numbness, and weakness is caused by HNP, L4-L5, status post-operative. 3. Radiculopathy to the left lower extremity manifested by pain, tingling sensation, numbness, and weakness is caused by HNP, L4- L5, status post-operative. 4. A right knee disability is etiologically related to lumbosacral strain and HNP, L4-L5, status post-operative. 5. A right hip disability is etiologically related to lumbosacral strain and HNP, L4-L5, status post-operative. 6. There is no other disability associated with the left knee, left hip, ankles, and feet that is etiologically related to lumbosacral strain and HNP, L4-L5, status post-operative. 7. The Veteran's lumbosacral strain and HNP, L4-L5, status post- operative are productive of incapacitating episodes requiring bed rest having a total duration that exceeds 6 weeks in a year. 8. The Veteran's low back disability precludes him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. HNP, L4-L5, status post-operative was incurred in active service. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2009). 2. Radiculopathy to the right lower extremity is the result of HNP, L4-L5, status post-operative. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.310(a) (2006); 38 C.F.R. § 3.303 (2009). 3. Radiculopathy to the left lower extremity is the result of HNP, L4-L5, status post-operative. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.310(a) (2006); 38 C.F.R. § 3.303 (2009). 4. A right knee disability is the result of lumbosacral strain and HNP, L4-L5, status post-operative. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.310(a) (2006). 5. A right hip disability is the result of lumbosacral strain and HNP, L4-L5, status post-operative. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.310(a) (2006). 6. A left knee disorder was not incurred in or aggravated by active service, and it is not proximately due to, the result of, or aggravated by lumbosacral strain and HNP, L4-L5, status post- operative. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.310(a) (2006); 38 C.F.R. § 3.303 (2009). 7. A left hip disorder was not incurred in or aggravated by active service, and it is not proximately due to, the result of, or aggravated by lumbosacral strain and HNP, L4-L5, status post- operative. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.310(a) (2006); 38 C.F.R. § 3.303 (2009). 8. A bilateral ankle disorder was not incurred in or aggravated by active service, and it is not proximately due to, the result of, or aggravated by lumbosacral strain and HNP, L4-L5, status post-operative. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.310(a) (2006); 38 C.F.R. § 3.303 (2009). 9. A bilateral foot disorder was not incurred in or aggravated by active service, and it is not proximately due to, the result of, or aggravated by lumbosacral strain and HNP, L4-L5, status post-operative. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.310(a) (2006); 38 C.F.R. § 3.303 (2009). 10. The criteria for an increased rating of 60 percent, but not higher, for lumbosacral strain and HNP, L4-L5, status post- operative have been met for the entire appeal period. 38 U.S.C.A. §1155 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5243 (2009). 11. The criteria for entitlement to TDIU are met. 38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. § 4.16(a) (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2009)) redefined VA's duties to notify and assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). The notice requirements of the VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159 (2009). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). Moreover, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (reaffirming that the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). In this case, in August 2004, October 2004, December 2004, and March 2006 letters, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate the claims, as well as what information and evidence must be submitted by the Veteran and the types of evidence that will be obtained by VA. The March 2006 letter advised the Veteran how disability evaluations and effective dates are assigned, and the type evidence which impacts those determinations. The Board finds that VA's duty to notify has been met. The record also reflects that VA has made reasonable efforts to assist the Veteran in the development of his claims. Specifically, the information and evidence that have been associated with the claims file includes service treatment records, post-service private treatment records, and VA examination reports. The Board finds that the VA examination reports are adequate for evaluation purposes because the examiner was "informed of the relevant facts," considered the contentions of the Veteran, and supported his medical conclusion with data and a rationale. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As discussed above, the Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process submitting several statements and evidence and providing testimony at a hearing. Thus, he has been provided with a meaningful opportunity to participate in the claims process and has done so. The Board finds that VA's duty to assist has been met. Factual Background Service treatment records show that the Veteran initially injured his back in a diving accident in May 1978. Records dated in June 1978 showed that the Veteran complained of severe low back pain and right lower extremity pain and numbness secondary to a fall from a pole. It was noted that he was seen for an evaluation of possible HNP currently diagnosed as lumbar strain. June 1978 radiographic reports indicated that the Veteran's lumbosacral spine was normal. Records dated in July 1978 showed continued complaints of low back pain. The August 1978 separation examination report was negative but the accompanying Report of Medical History showed the Veteran reported a positive response for recurrent back pain. Records dated thereafter showed the Veteran continued to complain of back pain and an assessment of back strain was noted. After service, the June 1979 VA examination report showed that the Veteran reported that since the fall from a pole, he had experienced problems with his low back, right leg, and hip. The VA examiner provided a diagnosis of severe lumbosacral strain. The x-ray was negative. The August 1981 VA examination report showed the Veteran continued to complain of low back pain and discomfort in his right thigh. The x-ray was negative. The examiner provided diagnoses of residual of injury to back, lumbosacral strain, and residual of injury to right thigh, localized area of fibromyositis of the right thigh (vastus lateralis) musculature. The August 1983 VA examination report showed the Veteran complained of pain and numbness in his lower right back and hip. The x-ray was negative. A February 1985 letter by Dr. G.F. noted the Veteran's in-service history of a back injury as well as subsequent back injuries in September 1984 and December 1984. In a June 1985 letter, Dr. J.M. reported that the Veteran had been under his care for low back syndrome since December 1984 at which time he presented with the complaint of severe low back pain. Dr. J.M. provided a diagnosis of subacute lumbosacral strain with intermittent episodes of spasm. The June 1985 VA examination report showed the Veteran complained of low back pain with radiation to the buttocks. The x-ray was interpreted as normal but it was noted that there was some disc space narrowing at the L5-S1 level which could be a normal variant. In an October 1985 letter, Dr. J.M. maintained that the Veteran was under his care for injuries sustained in December 1984 and that the Veteran had been continuously under his care since that time. Records from the Department of the Navy dated in March 1986 indicated the Veteran was provided notice of proposed separation from the rolls of the Philadelphia Naval Shipyard based on his physical inability to perform the duties of his position of carpenter (Marine) apprentice. It was noted that due to an injury the Veteran sustained on December 19, 1984, he was placed in a continuation of pay/leave without pay (workman's compensation) status on December 20, 1984, and the Shipyard had been without his services since that time. A Notification of Personnel Action indicated that the Veteran was terminated effective May 21, 1986. In a September 1986 letter to Dr. J.M., Dr. H.M. reported that a computed tomography (CT) scan of L3 to S1 revealed a HNP at L4- L5. Dr. H.M. provided a diagnosis of HNP at L4-L5 centrally and extending toward the left. The July 1988 VA examination report showed the Veteran complained of low back pain and numbness in his right buttocks with tingling down the "legs." The examiner provided a diagnosis of lumbosacral strain with sensory radiculitis. The x-ray was noted as normal. The March 1989 VA examination report showed the Veteran complained of low back pain, a tingling feeling down his right leg, and numbness in both feet. The neurological examination report noted a diagnosis of radiculopathy of L4-L5-S1 on the right due to discogenic disease of the lower lumbar spine. A November 1991 record noted that the Veteran had electrophysiological evidence of right and possibly left L5-S1 radiculopathy. A discharge summary noted that the Veteran underwent lumbar discectomy of L4-L5 and laminotomy mesofacetectomy in November 1992. A March 1993 record noted that the Veteran might have a problem in his knees in light of clicking observed on examination. In a February 1998 letter, Dr. M.C. noted that the Veteran was not capable of work, not even sedentary work at that time. In an April 1998 letter, Dr. G.K. noted an impression that included L4-L5 and L5-S1 radiculopathy and impairment of bilateral tibial and peroneal nerves as shown by previous electrodiagnostic studies as well as sprain and strain of the knees. In a May 2000 report of evaluation, Dr. D.G. noted diagnoses of chronic low back pain syndrome, status post right L-4 hemilaminectomy with neural foraminal stenosis, subacute/chronic L4-5 radiculopathy on the right by electrodiagnostic testing, subacute/chronic L4-5 radiculopathy on the left by electrodiagnostic testing, and trapezius and chronic lumbar myofascitis. A November 2000 operative note indicated that the Veteran underwent L4-L5 lumbar discography and L4-L5 percutaneous nucleotomy. In a July 2003 letter, Dr. D.G. reported that the Veteran had received notification of a job made available to him as a telephone solicitor described as a "sedentary position." Dr. D.G. maintained that based upon the Veteran's history, current complaints, current medical status, and results of the physical capacity evaluation, it was her opinion that he would be unable to perform the duties of a telephone solicitor. Dr. D.G. explained that the Veteran would not be able to tolerate the prolonged sitting that would most likely be required in such a position. An August 2003 record noted an impression of bilateral lumbosacral radiculopathy secondary to work related injury of "May 19, 1984." In an August 2004 VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), the Veteran indicated that he had not worked since December 19, 1984 due to his back and right knee. In an August 2004 letter, Dr. J.M. maintained that the Veteran had constant and progressive low back pain with radiation into the extremities as well as progressive right knee pain, right leg weakness, left lower extremity weakness, including atrophy of the muscles of the left lower leg, and progressive and permanent bilateral lower extremity nerve damage. Dr. J.M. reported that the Veteran sustained right knee injuries and additional low back injuries in 2003 secondary to a motor vehicle accident. Dr. J.M. maintained that the Veteran was "totally disabled." Dr. J.M. contended it was his opinion with a reasonable degree of medical certainty that the Veteran's chronic low back pain was initially sustained and contributed to by his first low back injury documented while he was in service. His subsequent insults to his back and knee have caused him to have an accelerated progression in his chronic and permanent conditions. Furthermore, his initial low back injury and subsequent injuries have contributed to his bilateral hip, knee, and leg problems as well as neurologic conditions, and the Veteran remained and will continue to be totally disabled and unable to work. Dr. J.M. provided the following diagnoses: chronic low back syndrome; status post two low back surgical procedures which led to failed low back syndrome; bilateral hip, knee, and lower leg weakness and muscle deterioration which was progressive; and chronic and permanent bilateral lower extremity nerve damage. Private treatment records dated through August 2004 noted neurological deficits associated with the lower extremities. The September 2004 VA examination report shows the examiner (Dr. J.I.) related that the Veteran reported on the in-service back injury as well as the post-service back injury for which he received workman's compensation. It was noted that the Veteran had also undergone right knee surgery. On physical examination the examiner observed that the Veteran walked slow and with a right knee limp. The low back demonstrated markedly impaired motion with extension backward to 10 degrees, forward flexion to 20 degrees, and lateral rotation to 15 degrees on both sides. There was no weakness of the lower limb muscles. The examiner maintained that the diagnosis of lumbosacral strain implied myofascial involvement but not disc disorder. The examiner noted that how the Veteran came about his disc disorder of the lumbosacral spine was unclear to the examiner but he knew of no relationship between lumbosacral strain and lumbosacral spine disc disorder. The examiner acknowledged that it was as likely as not that the Veteran might have impaired the intervertebral disc from the fall from a height of 20 feet or directly on the buttocks but the Veteran was the only one who knew exactly how he landed. The examiner maintained that although the Veteran's compensable disorder was that of lower back strain, the history of being able to work as a security guard and carpenter after mustering out of the military and until the low back injury in "1985" argued against the low back strain which should have made the Veteran unable to consider that kind of work. The examiner provided a diagnosis of chronic low back pain with marked limitation of motion. In an October 2004 statement, the Veteran stressed that he informed the September 2004 VA examiner that when he fell from the pole he landed directly on his "upper buttock and back." The January 2005 VA examination report shows the examiner (Dr. J.I.) related that the Veteran's right knee was injured in 2002 but that the injury was by the Veteran's report, preceded by ten or so years of spontaneous right knee pain. The examiner related that the Veteran reported that he was making a claim for his feet, the "right joint," the right knee, and the right ankle, so the examiner would not comment on the left ankle, both legs, the "right knee," and the left hip joint. The examiner noted that he had absolutely no idea what the Veteran's foot disorder was except that the Veteran told him that both feet hurt from his toes to his heels. The examiner observed that VA treatment records showed that x-rays of the right knee revealed mild osteoarthritis. The examiner maintained that he knew of absolutely no medical evidence that would support the Veteran's contention that the aforementioned joint disorders were of any relationship to the Veteran's compensable disorder of chronic lumbosacral strain. Furthermore, the examiner had absolutely no diagnosis for any of the Veteran's claimed disorders other than that of the right knee which could be attributed to osteoarthritis. The examiner concluded that the Veteran was examined for a relationship of any right hip joint, right knee, right ankle, and feet disorder to the compensable lumbosacral strain disorder but absolutely none was found. In a February 2006 letter, Dr. J.M. noted that the Veteran suffered from constant and progressive low back pain with radiation into both extremities and persistent right knee pain and swelling despite his knee having undergone arthroscopic surgery. Dr. J.M. maintained that it was his opinion that the Veteran sustained military injuries to his lower back secondary to a fall on active duty when he fell approximately 20 feet and then sustained two other subsequent low back injuries which were job-related in 1984 and 1985. Dr. J.M. further maintained that the initial insult to the Veteran's back originated in service. Dr. J.M. indicated that the Veteran's current disability status was permanent and that he would never be able to work on a regular basis secondary to his chronic low back pain which stemmed from multiple insults to the lumbar region. Dr. J.M. provided diagnoses including chronic low back syndrome with disc pathology. Dr. J.M. noted that it was his opinion with a reasonable degree of medical certainty that the foregoing diagnoses and prognosis were directly related to first the military-related injury to the low back and then to job-related injuries to the low back. In a March 2006 statement from the Veteran, it appeared by what was meant of secondary disabilities of the hips, legs, knees, ankle, and feet was "radiating pains in both extremities." In an April 2006 letter, Dr. J.M. reported that the Veteran was under his care for long standing back and knee injuries which originated in service. The May 2006 VA examination report shows the examiner (Dr. J.I.) noted that his opinion remained the same as expressed in the September 2004 and January 2005 VA examination reports. The examiner maintained that clearly the Veteran had no residuals of any low back injury from the time of mustering out of service until the first low back injury on the job in 1984, and it was that injury that had left him with residuals of a chronic low back disorder. The examiner observed that after the injury in 1978 during service, plain films of the lumbosacral spine were interpreted as normal and no other imaging studies were done during service as the Veteran most likely had no further symptoms requiring further imaging studies. The examiner maintained that he knew of no evidence that a strain injury of the low back was a risk factor for degenerative disc disease in the future. Furthermore, the history of the Veteran's low back disorder was one of no difficulty following injury in the service, and difficulty starting with injury starting in civilian life. The examiner therefore concluded that the Veteran's present day low back disorder of HNP was of no relationship to the injury suffered during service and if one went by the history of the Veteran's course following the EMG in the military, he completely recovered from that injury without residuals. In a June 2006 letter, Dr. D.G. reported that the Veteran experienced lower back pain that radiated into the lower extremities. He experienced numbness and tingling into the lower extremities into his feet which made it difficult for him to have a normal gait pattern and his legs fatigued easily. He also suffered numerous exacerbations of his pain associated with severe, disabling muscle spasms. Dr. D.G. maintained that a review of his medical records revealed that over the course of the last year, he had documented incapacitating episodes of pain including in July 2005, October 2005, January 2006, February 2006, and April 2006. Most of these episodes required trigger point injection and/or intramuscular analgesic injection and all of them required rest. Dr. D.G. contended that these incapacitating episodes exceeded a total duration of six weeks within the past year, and they were unpredictable in occurrence. Dr. D.G. further noted that the Veteran also suffered from right knee pain and that because of his altered gait pattern as a result of his lower back pain and lower extremity paresthesias and weakness, he developed hip and knee pain. Dr. D.G. maintained that over the years, the right knee pain progressed to the point of his knee buckling. He was diagnosed with osteoarthritis and internal derangement of the knee confirmed by MRI. Subsequently, he was injured in a motor vehicle collision which aggravated his condition. He had knee surgery in 2004 but he continued to be symptomatic. Dr. D.G. indicated that the Veteran currently complained of right hip pain and spasms. The physical examination revealed lumbar spine flexion to 30 degrees, extension to 5 degrees, left lateral flexion to 20 degrees, right lateral flexion to 18 degrees, left rotation to 10 degrees, and right rotation to 15 degrees. Pain and patella grinding were elicited in the right knee. Demonstrable pain was elicited on examination of the back, right knee, and right hip. Dr. D.G. provided the following diagnoses: chronic lower back pain secondary to degenerative disc and spine disease with spinal stenosis and bilateral radiculopathies; status post lumbar laminectomy and percutaneous discectomy with persistent pain and post laminectomy syndrome; chronic mechanical lower back pain with myofascitis; right knee osteoarthritis status post arthroscopic surgery with residual knee pain and instability; and clinical evidence of right hip osteoarthritis. Dr. D.G. opined that the above diagnoses were a result of the injury to the Veteran's lower back in service and sequelae of the natural history of his injury. He also could not work and perform the necessary activities of daily living. A December 2006 MRI indicated changes associated with the right knee including degeneration of the medial meniscus and a lateral meniscus tear. In a January 2007 letter, Dr. D.G. reported that the Veteran was unemployable secondary to injuries he sustained in service. Dr. D.G. described the in-service fall from the pole and reported for the first time that in addition to the Veteran falling on his back he also struck his right lower extremity. Dr. D.G. noted that the Veteran claimed that he struck his right heel. He immediately experienced back pain that radiated into the lower extremities. Dr. D.G. maintained that such a mechanism of injury provided sufficient force to disrupt the integrity of the Veteran's lumbar intervertebral disc to the vertebrae. This intact relationship was necessary to provide nutrients to the disc which was without its own blood supply. Without the required nutrients, the disc was at risk for degeneration, which occurred with the Veteran resulting in progressive disc degeneration that was aggravated by a later work injury. This was also a reason for lower back pain. Such a disc injury caused an inflammatory response that was irritating to nearby nerves resulting in pain radiating into the lower extremities. He had continued to experience chronic back pain radiating into the lower extremities. Dr. D.G. further indicated that the Veteran reportedly had a CT scan of his back in 1978; however, the study was not available for a review. Even so, Dr. D.G. explained that a CT scan in 1978 would not have been sensitive to evaluate such pathology. Dr. D.G. also stressed that the pattern of the Veteran's pain episodes exceeding a total duration of six weeks within the past year should entitle the Veteran to a higher evaluation. Dr. D.G. also reported that the Veteran currently had right knee pain. Dr. D.G. claimed that the Veteran sustained direct trauma to the knee from the fall from the pole. Dr. D.G. explained that striking his heel transmitted sufficient force through his leg to damage the cartilage within his knee predisposing him to develop osteoarthritis. In addition, his altered gait pattern as a result of his back pain contributed to this. Thereafter, in subsequent statements the Veteran began to claim that he struck his right heel in addition to landing on his back from the fall in service. At the January 2007 hearing, the Board sought to clarify what exact disabilities of the hips, legs, knees, ankles, and feet the Veteran was claiming. The Veteran testified that he was seeking compensation for "pain, numbness and tingling in those areas." (See Transcript page 28). Private treatment records indicate the Veteran underwent total right knee replacement in April 2007. Analysis The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 1. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2009). In order to establish service connection for a claimed disorder, the following must be shown: (1) the existence of a present disability; (2) in- service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b) (2009). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2009). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a compensable degree within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2009). Service connection may also be established for disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disability may be service- connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439 (1995). Effective October 10, 2006, VA amended 38 C.F.R. § 3.310 to implement Allen v. Brown, 7 Vet. App. 439 (1995). The amendment sets a standard by which a claim based on aggravation of a non- service-connected disability by a service-connected one is judged. Although the overall intention of the amendment to 38 C.F.R. § 3.310 was to implement the Allen decision, the amended 38 C.F.R. § 3.310(b) clearly institutes additional evidentiary requirements and hurdles that must be satisfied before aggravation may be conceded and service connection granted. The Court in Allen was not concerned with, and did not address, such an evidentiary requirement. As 38 C.F.R. § 3.310(b) appears to place substantive evidentiary restrictions on a veteran before aggravation may be conceded, and because the Veteran's claim was pending before the regulatory change was made, the Board may consider the version of 38 C.F.R. § 3.310 in effect before the change, which is the version that favors the claimant. See generally Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-03. i. HNP, L4-L5, Status Post-Operative There are conflicting medical opinions of record with regard to the matter of whether the Veteran sustained a HNP as the result of his military service. The Board is required to weigh the credibility and probative value of these opinions, and in so doing, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)). The Board must account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). The VA examiner who conducted the September 2004, January 2005, and May 2006 examinations contends with supporting rationale that there is no etiological relationship between the service- connected lumbosacral strain and the post-service HNP. The Veteran's treating physicians contend that the post-service HNP is indeed etiologically related to the service-connected lumbosacral strain with a supporting rationale set forth in Dr. D.G.'s January 2007 letter. Because the positive opinion evidence is as persuasive as the negative opinion evidence, the evidence is at least in relative equipoise on the issue of whether the Veteran's HNP, L4-L5, status post-operative is etiologically related to an incident of his military service. Therefore, the Board resolves all reasonable doubt in favor of the Veteran and finds that service connection for HNP, L4-L5, status post-operative is warranted. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2009); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ii. Bilateral Leg, Knee, Hip, Ankle, and Foot Disabilities The Board has found that service connection is warranted for HNP, L4-L5, status post-operative. Private treatment records clearly show that the Veteran has neurological impairment associated with his legs due to degenerative disc disease of the lumbosacral spine. Specifically, he has radiculopathy of the right and left lower extremities manifested by pain, tingling sensation, numbness, and weakness, as the result of the HNP. Accordingly, service connection is warranted for radiculopathy of the right and left lower extremity secondary to HNP, L4-L5, status post- operative. Additionally, in June 2006 and January 2007 letters, Dr. D.G. reported that the Veteran developed a right knee disability as the result of striking his heel in the in-service fall and as the result of an altered gait on account of his severe low back disability which was further exacerbated by a post-service motor vehicle accident. Notwithstanding that the current "striking of the heel" theory is in stark contrast to earlier statements made by the Veteran in which he was emphatic that he landed directly on his "upper buttock and back" with no mention of striking his heel, the Board recognizes that service treatment records show immediate complaints associated with the right leg following the in-service fall. In addition, private treatment records show that the Veteran was noted to have problems ("clicking") with the knee in 1993, prior to the motor vehicle accident. The Veteran also has an altered gait pattern as a result of lower back pain. Private treatment records further show that the Veteran had osteoarthritis and internal derangement of the right knee and ultimately underwent a total right knee replacement in April 2007. There is insufficient evidence of record to show that any subsequent injury the Veteran sustained to his right knee in the post-service motor vehicle accident is the proximate cause for the current right knee disability. Thus, the Veteran's current right knee disability is not clearly attributable to an intercurrent cause. 38 C.F.R. § 3.303(b) (2009). Dr. D.G. also reported that the Veteran developed right hip problems as the result of the in-service injury and that he had "clinical evidence of right hip osteoarthritis." Accordingly, the Board finds that service connection is warranted for right knee disability and right hip disability secondary to lumbosacral strain and HNP, L4-L5, status post-operative. No other disability associated with the left knee, left hip, ankles, and feet other than the above has been attributed to the lumbosacral strain and HNP, L4-L5, status post-operative by the Veteran and clinically attributed to these low back disabilities by the private treating physicians. Accordingly, service connection as to these issues is denied. 2. Increased Rating for Service-Connected Lumbosacral Strain Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2009). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1 (2009). Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2009); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2009); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2009); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10 (2009). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2009); see also 38 C.F.R. § 4.45 (2009). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Id.; Powell v. West, 13 Vet. App. 31, 35 (1999). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Under the General Rating Formula for Diseases and Injuries of the Spine, 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 30 percent rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is assigned 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 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2009). Unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, Diagnostic Code 5237, Note (5) (2009). Any associated objective neurologic abnormalities, including, but not limited to bowel or bladder impairment are to be evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code 5237, Note (1) (2009). Intervertebral disc syndrome is to be evaluated 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 under § 4.25. For purposes of evaluations under Diagnostic Code 5243, 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. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1) (2009). A 40 percent rating requires incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, and the maximum 60 percent rating requires incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Evaluations in excess of 40 percent under the General Rating Formula for Diseases and Injuries of the Spine for orthopedic impairment associated with disability of the spine are available only for unfavorable ankylosis of the spine, which the Veteran does not have. As for neurological impairment associated with disability of the spine, service connection has been established for radiculopathy to the lower extremities, and these disabilities will be rated upon implementation of the award by the RO in the first instance. As the Board has awarded service connection for HNP, L4-L5, status post-operative, disc disease is now considered a component of the Veteran's service connected low back disability. Thus, the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is for consideration. Dr. D.G. reported that the Veteran suffered from incapacitating episodes of low back pain attributable to disc disease that required bed rest which exceeded a total duration of six weeks within the past year and that such episodes were unpredictable in occurrence. The Veteran meets the criteria for a 60 percent evaluation under the Formula for Rating Intervertebral Disc Syndrome based on this clinical finding. There is no indication that the described recurring incapacitating episodes have not been characteristic of the low back disability throughout the entire appeal period. Accordingly, the Board will not assign staged ratings as the factual findings do not show distinct time periods where the low back disability warranted different ratings, and so the Veteran is entitled to a 60 percent rating for the entire appeal period. Hart v. Mansfield, 21 Vet. App. 505 (2007). Consideration has also been given to whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "an extra- schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2009); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record). In determining whether an extra-schedular evaluation is for consideration, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must next consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-16. When those two elements are met, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1)(2009); Thun, 22 Vet. App. at 116. The schedular evaluation in this case is not inadequate. The diagnostic criteria adequately describe the severity and symptomatology of the Veteran's low back disability, and the Veteran has not described any exceptional or unusual features associated with his disability. As the Board finds that the Veteran's disability picture is contemplated by the rating schedule, the inquiry ends and the Board need not consider whether the disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Accordingly, referral for consideration of an extra-schedular rating is not warranted. 3. Entitlement to TDIU Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2009). If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341 (2009). In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effect of combinations of disability. 38 C.F.R. § 4.15 (2009). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the veteran's service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a) (2009). As the result of the Board's decision, the Veteran meets the percentage requirements of 38 C.F.R. § 4.16(a) based on a low back disability ratable at 60 percent. As discussed above, the evidence of record clearly indicates that the Veteran's low back disability renders him unable to perform physical work as well as sedentary work. Thus, the Veteran is unemployable. Accordingly, the Board finds that the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability. ORDER Service connection for HNP, L4-L5, status post-operative is granted. Service connection for radiculopathy to the right lower extremity as secondary to HNP, L4-L5, status post-operative is granted. Service connection for radiculopathy to the left lower extremity as secondary to HNP, L4-L5, status post-operative is granted. Service connection for a right knee disability as secondary to lumbosacral strain and HNP, L4-L5, status post-operative is granted. Service connection for a right hip disability as secondary to lumbosacral strain and HNP, L4-L5, status post-operative is granted. Service connection for a left knee disorder, including as secondary to low back disability is denied. Service connection for a left hip disorder, including as secondary to low back disability is denied. Service connection for a bilateral ankle disorder, including as secondary to low back disability is denied. Service connection for a bilateral foot disorder, including as secondary to low back disability is denied. An increased rating of 60 percent for lumbosacral strain and HNP, L4-L5, status post-operative for the entire appeal period is granted, subject to the law and regulations governing the award of monetary benefits. Entitlement to TDIU is granted, subject to the provisions governing the award of monetary benefits. REMAND The Board observes that in a statement received by the RO in October 2007 and in a December 2007 clarifying statement as prompted by a December 2007 RO letter regarding the same, the Veteran expressed disagreement with a September 2007 rating decision. It is not clear if a statement of the case has been issued on the appealed issues as no statement of the case is contained in the claims file. The Court has held that 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 for the issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Thus, this claim is being remanded for issuance of a statement of the case, if one has not already been issued, and to give the Veteran the opportunity to complete an appeal. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 19.26 (2009). Accordingly, the case is REMANDED for the following action: The RO should issue a statement of the case to the Veteran and his representative on the issues contained in the September 2007 rating decision, if one has not already been issued , so that the Veteran may have the opportunity to complete an appeal on these issues (if he so desires) by filing a timely substantive appeal. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs