Citation Nr: 1000486 Decision Date: 01/05/10 Archive Date: 01/15/10 DOCKET NO. 07-27 068 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a compensable disability rating for post- operative status, hemorrhoidectomy (hemorrhoid disability). 2. Entitlement to a disability rating in excess of 10 percent for degenerative disc disease of the lumbar spine previously rated as chronic low back pain (lumbar spine disability). 3. Entitlement to a disability rating in excess of 10 percent for radiculopathy of the right lower extremity (radiculopathy disability), associated with the disability of degenerative disc disease of the lumbar spine previously rated as chronic low back pain. 4. Entitlement to service connection for a bilateral foot condition, to include as secondary to the Veteran's service- connected disability of degenerative disc disease of the lumbar spine previously rated as chronic low back pain, and as secondary to his service-connected disability of radiculopathy of the right lower extremity (radiculopathy disability), associated with the disability of degenerative disc disease of the lumbar spine previously rated as chronic low back pain. 5. Entitlement to a total disability evaluation based on individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Linda E. Mosakowski, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1955 to September 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that denied service connection for a bilateral foot condition and denied increased ratings for the Veteran's hemorrhoid and lumbar spine disabilities. In December 2008, the RO granted service connection for the radiculopathy disability associated with the lumbar spine disability, and assigned a 10 percent disability rating, effective from November 12, 2008. In September 2009, the Veteran and his wife testified at a personal hearing over which the undersigned Acting Veterans Law Judge presided at the RO, a transcript of which has been associated with the claims folder. The Board received additional evidence from the appellant prior to the hearing. He also submitted a waiver of initial RO review of the new evidence. The evidence will therefore be considered in this decision. 38 C.F.R. § 20.1304 (2009). The Veteran has consistently sought service connection for the pain in his feet. He called that pain "neuropathy" and the service connection claim was developed as if the Veteran were seeking neurological manifestations of his lumbar spine disability. But at his personal hearing, the Veteran clarified that whatever his disabilities of the feet may be called, he is seeking service connection for all of the problems with his feet. Accordingly, the Board has amended the wording of that issue, as seen on the first page of this decision. Further, as a result of the Veteran's statements and evidence about the effect the Veteran's service connected disabilities have had on his ability to secure of follow substantially gainful employment, the Board finds that his increased rating claims includes a claim for TDIU, and that this claim has therefore been added as an additional claim entitled to current appellate review. Rice v. Shinseki, 22 Vet. App. 447 (2009). The issues of entitlement to service connection for a bilateral foot condition and a total disability evaluation based on individual unemployability 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. The Veteran's hemorrhoid disability manifests in moderate-sized hemorrhoids that bleed occasionally, are painful, cause difficulty with bowel movements, and make it uncomfortable for the Veteran to sit for prolonged periods; the hemorrhoids are not thrombotic and not irreducible, have no excessive redundant tissue, and do not produce secondary anemia or fissures. 2. The Veteran's lumbar spine disability results in loss of forward flexion to 30 degrees or less due to pain; however, there is evidence the spine disability results in ankylosis or intervertebral disc syndrome with incapacitating episodes. 3. The Veteran's radiculopathy disability manifests in pain that radiates down the right lower extremity to the toes, hypoactive ankle jerk, and decreased sensation of the big toe of the right foot. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for post-operative status, hemorrhoidectomy, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.114 and Diagnostic Code 7336 (2009). 2. The criteria for a disability rating of 40 percent, and no higher, for degenerative disc disease of the lumbar spine, previously rated as chronic low back pain, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.25, 4.40, 4.71a and Diagnostic Codes 5003, 5237, 5242, 5243 (2009). 3. The criteria for a disability rating in excess of 10 percent for radiculopathy of the right lower extremity associated with the disability of degenerative disc disease of the lumbar spine, previously rated as chronic low back pain, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.25, 4.40, 4.124a and Diagnostic Code 8520 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased ratings Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (38 C.F.R., Part 4), which represents the average impairment in earning capacity resulting from injuries incurred in military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Generally, an evaluation of the extent of impairment requires consideration of the whole recorded history (38 C.F.R. §§ 4.1, 4.2), but when, as here, service connection has been in effect for many years, the primary concern for the Board is the current level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). And the relevant temporal focus for adjudicating an increased rating claim is on the evidence establishing the state of the disability from the time period one year before the claim was filed until a final decision is issued. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). Staged ratings may be appropriate if the severity of the disability changes during the relevant rating period. Here, since the Veteran's hemorrhoid disability has remained constant during the entire rating period, staged ratings are not appropriate with respect to that disability. The RO has assigned a separate rating for radiculopathy of the right lower extremity, effective from November 12, 2008, which effectively created staged ratings for the lumbar spine disability. But as discussed below, since the record does not establish that a higher radiculopathy rating is warranted at any time during the relevant ratings period, and since the increased rating based on functional limitation due to pain is applicable during the entire rating period, no additional stages are warranted. A. Hemorrhoids In an October 1975 rating decision, service connection for postoperative status, hemorrhoidectomy, was granted and a noncompensable rating was assigned from October 1, 1975. Diagnostic Code (DC) 7336, 38 C.F.R. § 4.114 (noncompensable rating for mild or moderate hemorrhoids). The Veteran now seeks a higher rating. Two compensable ratings are available under DC 7336, which contains the criteria for evaluating external or internal hemorrhoids: a 10 percent rating is available for large or thrombotic, irreducible hemorrhoids, with excessive redundant tissue, evidencing frequent recurrences; and a 20 percent rating is available for hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. DC 7336, 38 C.F.R. § 4.114. The record does not establish that a compensable rating is warranted. There is no evidence of large hemorrhoids or thrombotic, irreducible hemorrhoids. January 2008 Center for Endoscopy Colonoscopy Report (medium-sized hemorrhoids); February 2008 Letter from Colorectal Surgeon to Dr. Langfitt (exam confirmed small to moderate hemorrhoids); August 2006 C&P Exam (no history of thrombosis); November 2008 C&P Exam (no history of thrombosis). Nor are there any findings of excessive redundant tissue or frequent recurrences. November 2008 C&P Exam (no recurrences). Thus, a 10 percent rating is not warranted. Nor is the criterion for a 20 percent rating established on this record. The schedular criteria provides for frequent bleeding and anemia or fissures. Although there is evidence of blood in the stool, there is no evidence whatsoever of secondary anemia or fissures. In any event, the record does not show there is persistent bleeding. November 2008 C&P Exam (history of occasional rectal bleeding); October 2007 Emergency Department Records of Baptist Health Center (exam shows signs of blood in the stool). The Veteran reported that he experiences bleeding when traveling. August 2006 C&P Exam (Veteran reported frequent rectal bleeding, especially during traveling). But he testified that while he wears dark trousers to hide bleeding, he does not wear any kind of pad. Transcript at 19. And while he submitted a December 2008 statement that he experienced bleeding seven or eight times per month, when he was under oath at the personal hearing, he estimated that he experiences bleeding at a frequency between twice per month and once every two months. Transcript at 19. Lay evidence can be provided by a person who has no specialized education, training, or experience, but who knows the facts or circumstances and conveys those matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). A lay person is thus competent to testify about symptomatology where the determinative issue is not medical in nature. Falzone v. Brown, 8 Vet. App. 398, 405- 406 (1995) (lay statements about a person's own observable condition or pain are competent evidence); Layno v. Brown, 6 Vet. App. 465, 469-470 (1994) (lay testimony is competent when it regards features or symptoms of injury or illness). Thus, the Veteran is competent to report how often he notices blood in his stool or on his clothing. But just because the Veteran is competent to present lay evidence of symptomatology does not mean that all of his statements are equally credible. It is the responsibility of the Board to weigh the evidence and determine where to give credit and where to withhold the same and in so doing, the Board may accept some evidence and reject other evidence. Evans v. West, 12 Vet. App. 22, 30 (1998). In determining credibility, one factor to be considered is the consistency of one statement with another and with the other evidence in the record. Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996) (in determining the weight to be assigned to evidence, credibility can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). Given the great disparity in the Veteran's two statements concerning the frequency of his bleeding, the Board must determine which of the statements is more credible. The Board finds that the frequency of bleeding evidence at the personal hearing was not only provided while under oath, but is more consistent with the fact that the Veteran declines to protect his clothing, that he does not have anemia, and that he refuses to have the hemorrhoids banded. Thus, the Board assigns little weight to the statement that he bleeds seven or eight times per month and assigns great weight to the sworn testimony that he bleeds at a frequency between twice per month and once every two months. Since that does not constitute persistent bleeding as set forth in the schedular criteria, the record does not establish that a 20 percent rating is warranted. Moreover, as previously noted, even if persistent bleeding was shown, which it is not, there remains no evidence that the Veteran has been diagnosed as having anemia or fissures. A finding of anemia or fissures is required to support the assignment of a 20 percent rating. The Veteran has moderate hemorrhoids with no severe symptoms. Since the schedular criteria provides that a noncompensable rating is assigned for mild or moderate internal or external hemorrhoids (see DC 7336, 38 C.F.R. § 4.114), no compensable rating is warranted here. Nor does the Veteran qualify for extra-schedular consideration for his service connected hemorrhoid disability. In exceptional cases where schedular evaluations are found to be inadequate, consideration of an extra- schedular evaluation is made. 38 C.F.R. § 3.321(b)(1). But if the level of severity and symptomatology of the Veteran's service-connected disability is compared to the established criteria found in the rating schedule and the schedular rating is adequate, no extra schedular rating is warranted. Thun v. Peake, 22 Vet. App. 111, 115 (2008). As noted above, the Veteran has moderate hemorrhoids that do not manifest with unusual symptoms. The pain, occasional bleeding, difficulty with bowel movements, and discomfort while sitting for long periods do not indicate an exceptional hemorrhoid disability. The Veteran argues that he now has scar tissue from the two surgeries he underwent prior to the rating period at issue. But his private physician indicated that prior to 1999, he had severe scarring and muscle and nerve damage, but that the 1999 hemorrhoidectomy corrected it somewhat. January 2007 Letter from Dr. Secunda. None of the medical evidence for this rating period indicates that he currently has rectal scar tissue. But even if he did have scar tissue, it does not manifest in any symptoms that warrant an increased rating. Since the schedular criteria are adequate for rating the Veteran's hemorrhoid disability, no referral for an extraschedular rating is warranted. When there is an approximate balance of positive and negative evidence about a claim, reasonable doubt should be resolved in the claimant's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The only positive evidence here concerns the Veteran's pain, toileting difficulties, and bleeding. But that is not positive evidence relating to the schedular criteria for a higher rating. And in light of the negative evidence with respect to required elements of each higher rating, there is not an approximate balance of evidence. Thus, there is no reasonable doubt to resolve. Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (benefit of the doubt rule inapplicable when the preponderance of the evidence is against the claim). B. Lumbar spine and radiculopathy 1. Schedular criteria When the Veteran filed his claim for an increased rating, a 10 percent rating under Diagnostic Code 5237 was assigned for his disability then called chronic low back pain and now called degenerative disc disease of the lumbar spine. In December 2008, the RO assigned a separate rating for radiculopathy of the right lower extremity and assigned a disability rating of 10 percent, effective from November 12, 2008. Since the RO did not assign the maximum disability rating possible, the appeal for a higher evaluation remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). Before addressing the schedular criteria in the two formulas for evaluating disabilities of the spine (see 38 C.F.R. § 4.71a), the Board notes that the record is replete with evidence of functional limitation of the lumbar spine due to pain. A disability of the musculoskeletal system is primarily the inability, due to damage, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. Thus, functional loss due to pain and weakness must be considered in evaluating the disability because a part which becomes painful on use must be regarded as seriously disabled. Id. See also DeLuca v. Brown, 8 Vet. App. 202 (1995) (disability ratings should reflect the Veteran's functional loss due to fatigability, incoordination, endurance, weakness, and pain). And the rating should reflect the condition of the Veteran during flare-ups. DeLuca v. Brown, supra. The regulations regarding diseases and injuries to the spine, to include intervertebral disc syndrome, are to be evaluated under diagnostic codes 5235 to 5243 as follows: 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 Unfavorable ankylosis of the entire spine.............100 Unfavorable ankylosis of the entire thoracolumbar spine .....................................................50 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.....................................40 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....................................................20 Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, 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. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes With incapacitating episodes having a total duration of at least six weeks during the past 12 months.............60 With incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months................................... .......................40 38 C.F.R. § 4.71a, Diagnostic Codes 5235 - 5243. On review of the evidence of record, and resolving all doubt in his favor, the Board finds that the criteria to support a 40 percent disability evaluation for the Veteran's low back disability have been met. The evidence shows that the Veteran suffers from a severe loss of range of motion of the lumbar spine. When he was examined in November 2008, the Veteran demonstrated forward flexion from zero to 70 degrees with pain beginning at 20 degrees. It was observed that the disability prevents him from playing sports, has a severe effect on his chores, shopping, exercise, bathing, and toileting, and has a mild effect on his recreation, travel, feeding, dressing, and grooming. The Veteran always used a cane, could only walk a few yards, and could stand for up to 30 minutes only on a good day. The November 2008 C&P examiner noted his difficulty in taking off his shoes and socks and his inability to put his socks back on. The November 2008 C&P examiner provided an opinion that if he were employed, his lumbar spine disability would have significant effects on employment because he would have increased absenteeism. The March 2009 report from Jacksonville Spine Center was marginally better. At that time, the Veteran had forward flexion to 35 degrees before he experienced pain. Recognition is given to the fact that an August 2006 VA examination revealed forward flexion to 70 degrees. However, resolving the benefit of the doubt in his favor, the Board finds that the Veteran suffers from loss of forward flexion to 30 degrees or less. A 40 percent disability rating is therefore warranted. The next question before the Board is whether a disability rating in excess of 40 percent is warranted. The Board finds that the criteria for an evaluation in excess of 40 percent for the period in question have not been met. The Veteran is already receiving the maximum rating for loss of range of motion of the lumbar spine. Even considering any complaints of weakness, fatigability, or loss of function due to pain, a higher disability may not be assigned. See Johnston v. Brown, 10 Vet. App. 80 (1997) (if a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable). Therefore, the only means by which a higher rating could be assigned would be if there is evidence of unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes of intervertebral disc syndrome having a total duration of at least six weeks during the past year. Ankylosis is "immobility and consolidation of a joint due to disease, injury, surgical procedure." See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). VA and private examination reports all indicate that the Veteran retains an active range of motion of the lumbar spine. Treatment records also show that the Veteran has some active range of motion of the lumbar spine. The Veteran does not contend otherwise. In other words, there is no evidence of unfavorable ankylosis of the thoracolumbar spine. A higher disability evaluation under Diagnostic Code 5240 would therefore be inappropriate. With respect to the question as to whether a higher (60 percent) rating could be assigned for intervertebral disc syndrome, there is no evidence of the Veteran experiencing any incapacitating episodes resulting from intervertebral disc syndrome of at least six weeks during the past year. Indeed, the Veteran has neither been diagnosed with IDS nor has he experienced incapacitating episodes within the meaning of 38 C.F.R. § 4.71a. November 2008 C&P Spine Exam (Veteran was examined for IDS and when prompted to list the incapacitating episodes for the thoracolumbar region during the past 12 months and number of days of duration for each episode, the examiner recorded "none."). The Veteran at no time has made a claim to the contrary. Thus, a rating higher than 40 percent on the basis of the criteria in the IDS formula is not warranted on this record. Finally, if there are objective neurological abnormalities relating to the lumbar spine disability, those manifestations are to be rated under the appropriate, separate diagnostic code. 38 C.F.R. § 4.71a (Note (1) following the general spine formula). Here, the RO determined that a separate 10 percent rating under Diagnostic Code 8520 was appropriate for the radiculopathy of the Veteran's right leg, effective from November 12, 2008. The Veteran was sent notice of that separate rating in December 2008 and the claims folder does not contain a notice of disagreement as to the effective date or the scope of the separate neurological rating. Thus, in this appeal, the Board will address only whether that separate radiculopathy rating should be higher than 10 percent. The November 2008 C&P spine examiner is the only medical professional to have diagnosed radiculopathy related to the Veteran's lumbar spine disability. But see May 2006 Jacksonville Spine Center Initial Evaluation (sensory exam is grossly intact to pinprick and touch with the exception of feet due to peripheral neuropathy; decreased but obtainable ankle jerks; toes downgoing; he can achieve 80 to 90 degrees of seated straight leg raising, limited by hamstrings and gluteal muscle tightness). She stated that the Veteran had radiating sharp pain down the right leg ending in his toes. When prompted to provide detailed information about the location, including the name of the peripheral nerve with sensory branches fitting the pattern of sensory loss for the lower right extremity, she replied decreased vibration in the right great toe, of unclear significance. November 2008 C&P Spine Exam. Diagnostic Code 8520, which governs disabilities of the sciatic nerve, provides for a 10 percent rating for incomplete paralysis of the sciatic nerve that is mild, a 20 percent rating for a moderate disability, a 40 percent rating for a moderately severe disability, and a 60 percent rating for severe incomplete paralysis of the sciatic nerve, with marked muscular atrophy. 38 C.F.R. § 4.124a (diseases of the peripheral nerves). An 80 percent rating is authorized for complete paralysis of the sciatic nerve, evidenced by foot dangles and drops, no active movement possible of muscles below the knees, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a (diseases of the peripheral nerves). The record does not establish that the Veteran has any symptom other than sharp pain down his right leg, decreased sensation in his big toe (of unclear significance) and a hypoactive ankle jerk on the right. November 2008 C&P Spine Exam (reflexes on right and left normal, except for hypoactive ankle jerk on the right; as for sensory examination, pain, light touch, and position sense were all normal bilaterally, while vibration was absent on the right). Indeed, at the Jacksonville Spine Center exam four months later, that examiner found that he was neurologically intact, although he walked with an antalgic gait. The examiner noted he could get up onto his toes and onto his heels. March 2009 Jacksonville Spine Center Exam; see also January 2009 Jacksonville Spine Center Treatment Report (no significant radiation past the buttocks). Since this evidence establishes, at most, a mild disability of the sciatic nerve, an increased rating for a disability that is moderate, moderately severe, or severe is not warranted on this record. And there is no evidence of complete paralysis of the sciatic nerve. As a result, no increased rating for the neurological manifestations of the Veteran's lumbar spine disability is warranted. The Veteran does not qualify for extra-schedular consideration for his service- connected lumbar spine and radiculopathy disabilities. As discussed above, in exceptional cases where schedular evaluations are found to be inadequate, consideration of an extra-schedular evaluation is made. 38 C.F.R. § 3.321(b)(1). Here, the Veteran's lumbar spine disability manifests in pain and limitation of function due to pain, which are precisely the symptoms described in the schedular criteria discussed above. Since the schedular rating is adequate, no extra schedular rating is warranted. Thun v. Peake, 22 Vet. App. at 115. Nor does application of the benefit of the doubt doctrine change the outcome here. When there is an approximate balance of positive and negative evidence about a claim, reasonable doubt should be resolved in the claimant's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. With respect to the schedular criteria contained in the IDS formula or the general spine formula, the only evidence was negative evidence. As for functional limitation due to pain, the Board has already resolved the conflicting evidence in the Veteran's favor in order to award an increased rating to 40 percent. And as discussed above, since the Veteran has only mild functional limitations in some areas, the positive evidence of functional limitations does not create an approximate balance of positive and negative evidence for a rating higher than 40 percent. As for the radiculopathy issue, there is very little positive evidence of radiculopathy. When, as here, the evidence against the claim is much greater than that in favor, there is no reasonable doubt to resolve. Gilbert v. Derwinski, supra. II. Duties to notify and to assist VA has certain duties to notify and to assist claimants concerning the information and evidence needed to substantiate a claim for VA benefits. 38 U.S.C.A. §§ 5103 and 5103A (West 2002 & Supp. 2008); 38 C.F.R. § 3.159. VA must notify the claimant (and his or her representative, if any) 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 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Dingess v. Nicholson, 19 Vet. App. 473 (2006), also held that, as the degree of disability and effective date of the disability are part of a claim for service connection, VA has a duty to notify claimants of the evidence needed to prove those parts of the claim. Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO's May 2006 letter describing the evidence needed to support his increased rating claims was timely mailed before the September 2006 rating decision. It described the evidence necessary to substantiate a claim for service connection and for increased rating, identified what evidence VA was collecting, requested the Veteran to send in particular documents and information, identified what evidence might be helpful in establishing his claim, and addressed what evidence was necessary with respect to the rating criteria and the effective date of an award for service connection. VA thus fulfilled its duty to notify the Veteran of evidence necessary to substantiate his claims. VA also has a duty to assist a claimant in obtaining evidence to substantiate his or her claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA met its duty to assist the Veteran by retrieving his claims folder (that contained his service treatment records), by obtaining VA medical treatment records and private records requested by the Veteran, by conducting C&P examinations with respect to his hemorrhoid and low back disabilities, and by providing him with an opportunity to present sworn testimony at a personal hearing before the undersigned acting Veterans Law Judge. There are no outstanding requests for records. In April 2009, VA again checked to see if there were any additional VA medical records not already associated with the claims folder and found there were none. The Board finds that the C&P examinations were adequate to provide information necessary for evaluating the Veteran's hemorrhoid and low back disabilities. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Although the August 2006 C&P anus and rectum examiner and the August 2006 C&P spine examiner did not have the claims folder to review at the time of their respective examinations, they nevertheless provided sufficiently detailed information about the Veteran's complaints, their clinical findings, and his functional limitations due to pain that the Board was able to decide the claims based on their descriptions of the current status of the disabilities. The November 2008 C&P spine examiner reviewed the claims folder before producing her report. She also provided detailed information about the Veteran's subjective statements, made clinical findings, described the degree of functional limitation due to pain, and provided an opinion as to how the Veteran's painful lumbar spine disability would affect employment. The Veteran does not challenge those examination reports. Rather, he complains that VA relied exclusively on those C&P reports in evaluating his disabilities. But as shown above, in addition to the information in the C&P examination reports, in reaching its determination the Board has considered private treatment records, the Veteran's written statements, and his testimony, as well as that of his wife, given at his personal hearing. ORDER A compensable disability rating for post-operative status, hemorrhoidectomy, is denied. A disability rating of 40 percent, and no higher, for degenerative disc disease of the lumbar spine previously rated as chronic low back pain, is granted, subject to the criteria governing payment of monetary benefits. A disability rating in excess of 10 percent for radiculopathy of the right lower extremity associated with the disability of degenerative disc disease of the lumbar spine previously rated as chronic low back pain, is denied. REMAND Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For direct service connection, three requirements must be established: (1) a current disability exists; (2) an injury or disease was incurred during active military service; and (3) a relationship exists between the current disability and the inservice injury or disease. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) (a determination of service connection requires a finding of the existence of a current disability and a determination of the relationship between that disability and an injury or disease incurred in service). Here, the Veteran has been diagnosed with peripheral neuropathy and with plantar fasciitis of the bilateral feet, so the first requirement is established on this record. There is mixed evidence about whether an injury or disease was incurred during active military service. The Veteran incurred trauma to the third toe of the right foot in May 1961. The X-ray report showed no evidence of fracture or dislocation. There is no record of treatment for the third toe of the right foot in the Veteran's service treatment records. And in the September 1969 Report of Medical Examination, the examiner found his feet to be normal and no notes were made about residuals from the May 1961 trauma to his toe. In February 1970, an X-ray report indicated that X-rays of the right foot, pelvis, and lumbar spine were taken because of lumbosacral pain and trauma to the right foot. The X-ray report showed normal right foot, pelvis, and lumbosacral spine. There is no record of treatment for right foot trauma in the Veteran's service treatment records. The examiners for the October 1971 and November 1972 Reports of Medical Examination both found the Veteran's feet to be normal and made no notes about his feet. On his April 1975 retirement Report of Medical History, the Veteran checked the box to indicate he had had foot trouble. The examiner noted that he had had occasional foot pain since February 1970 with no treatment required. He noted it was never incapacitating and there were no complications and no sequelae. On the April 1975 Report of Medical Examination, the examiner marked the feet as normal with a note of "nontender." The Veteran's first medical treatment records for plantar fasciitis were in 1994 and indicated that the Veteran had had pain in his feet since 1992. May 1994 Mayport Naval Station Treatment Records (plantar tenderness in front of calcaneus bilaterally; assessment: plantar fasciitis); August 1995 Treatment by Dr. Broner (Veteran has long history of pain in the bilateral heels for 2.5 years' duration); November 1999 Social Security Report by Dr. Thao X Le (pain in Veteran's feet began in 1992 with no injury). Yet, at his personal hearing, the Veteran testified that he had experienced chronic pain in his feet since the mid- 1960's, while he was in service. Transcript at 11. He explained that having to stand on concrete for long hours caused foot pain. Transcript at 7. He also testified that while stationed at the Air Force Academy, he had been provided with external orthotics due to foot pain. Transcript at 9. His wife testified that she remembered him being given special shoes at the Air Force Academy to lessen his foot pain. Transcript at 23. In a February 2007 statement, the Veteran stated that he had had foot pain since February 1970 and had been issued special cushion insoles at the Air Force Academy in 1972. See also December 2008 Statement on VA Form 9 (the foot pain was incurred while I was in the service; I continually suffer from this disabling condition since leaving the service and now it is worse). In a recent prescription for orthotics, the examiner indicated that he had a foot deformity, although she did not identify it. March 2008 Mendez Family Care. A medical opinion was not obtained as to whether any current foot disability is related to active military service. VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4). A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that the Veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service. The third part could be satisfied by competent evidence showing post-service treatment for a condition or other possible association with military service. 38 C.F.R. § 3.159(c)(4). The threshold for establishing the third element is low for there need only be evidence that "indicates" that there "may" be a nexus between the current disability and military service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Since the record establishes that there currently are disabilities of the bilateral feet and that the Veteran's foot pain was noted in service, and he has now testified as to orthotics issued during service and indicated continuity of symptomatology since service, the Board finds that a medical examination is necessary to identify all current disabilities of the feet and to provide a medical opinion as to whether each is related to active military service. The Veteran also appears to relate the problems with his feet to his back condition. Service connection may also be granted on a secondary basis for a disability that is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence that shows: (1) a current disability exists; (2) the current disability was either (a) caused by or (b) aggravated by a service- connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Thus, the examination report must include opinions as to both theories of secondary service connection, that is, whether the disability of the feet was caused by the lumbar spine disability (including radiculopathy) and whether the disability of the feet was aggravated by the lumbar spine disability (including the radiculopathy). The Veteran is hereby notified that it is the Veteran's responsibility to report for the 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. Since the scope of the Veteran's service connection claim has been clarified, the Veteran should be sent notice of what evidence is necessary to substantiate both the direct and secondary service connection claims involving the bilateral feet. In addition to the above, the Board notes that the Court has held that entitlement to a total rating for compensation based on individual unemployability (TDIU) is an element of all appeals of an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2009). Here, the Veteran has presented evidence showing that he is unemployed. He has also intimated that his unemployment is due to his low back disability and hemorrhoids. Hence, the record raises the question of entitlement to TDIU. The Court has held that in the case of a claim for total rating based on individual unemployability, the duty to assist requires that VA obtaining an examination which includes an opinion on what effect the appellant's service- connected disability has on his ability to work. 38 U.S.C. § 5107(a); Friscia v. Brown, 7 Vet. App. 294, 297 (1994); 38 C.F.R. §§ 3.103(a), 3.326, 3.327, 4.16(a) (2008). The recent examinations do not contain an explicit opinion as to whether the Veteran's unemployment is attributable to his back disability, right lower extremity radiculopathy, and hemorrhoids or whether those disabilities would preclude all gainful employment. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a notice letter that identifies what evidence is necessary to substantiate both the direct and secondary service connection claims involving the bilateral feet. The Veteran should also be asked to report his employment history and clarify whether he is currently employed in gainful employment (i.e. employment paying more than the poverty rate). 2. Make arrangements for the Veteran to have an appropriate examination(s) for the purpose of obtaining etiology medical opinions concerning his current bilateral foot condition(s) with respect to both direct and secondary service connection.. Any indicated studies should be performed. A detailed history of symptoms during service and since the Veteran's September 1975 separation from service should be obtained. The claims folder, to include a copy of this Remand, must be made available to and reviewed by the examiner in conjunction with the examination report. The examiner should be informed that inservice medical records exist with respect to the Veteran's feet and that as a result of alternative legal theories, several opinions (with complete rationale) are needed. The examination report must provide complete rationale for all opinions. If it is not possible to provide an opinion, the examiner should state that and also explain why it is not possible. The report must address the following matters: (a) Identify each current disability of the feet. (b) For each currently-diagnosed disability, is it at least as likely as not (that is, a probability of 50 percent or greater) that the Veteran's current foot disability is related to his active military service? If yes, answer no further questions; if not, answer question (c), below; (c) If the Veteran's foot disability is not related to active military service, is it at least as likely as not (that is, a probability of 50 percent or greater) that either the Veteran's service-connected disability of degenerative disc disease of the lumbar spine (lumbar spine disability) or the disability of radiculopathy of the lumbar spine disability caused his foot disability? If yes, answer no further questions; if not, answer question (d), below; (d) If the Veteran's foot disability is not related to active military service, and the service-connected lumbar spine and/or radiculopathy disabilities did not cause his foot disability, is it at least as likely as not (that is, a probability of 50 percent or greater) that the Veteran's service-connected lumbar spine and/or radiculopathy disabilities make his foot disability worse than it otherwise would have been in the natural progress of that disease? If not, answer no further questions; if yes, answer question (e), below; (e) For each foot disability made worse by the Veteran's service-connected disabilities of the lumbar spine and/or radiculopathy, please describe: (i) the nature of and the level of the Veteran's foot disability before the service- connected disabilities of the lumbar spine and/or radiculopathy began making the foot disability worse; (ii) at what level the foot disability would have currently been due to the natural progression of that disease without the aggravation by the lumbar spine and/or radiculopathy disabilities; and (iii) the current level of the foot disability as a result of aggravation by the service-connected lumbar spine and/or radiculopathy disabilities. 3. Further, if the Veteran reports that he is unemployed, provide him with an examination to determine whether his service connected disabilities, as likely as not, prevent him from obtaining or retaining gainful employment that his education and occupational experience would otherwise permit him to undertake. The examiner should review the claims folders and note such review in the examination report or in an addendum. The examiner should provide a rationale for the opinion. If further examination is recommended, it should be undertaken. 4. Thereafter, readjudicate the claim for service connection. The RO should also adjudicate the issue of TDIU. If any sought benefit is denied, issue the Veteran and his representative a supplemental statement of the case. After they have been given an opportunity to respond, the claims file should be returned to this Board for further appellate review. 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). 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). ______________________________________________ MICHAEL A. HERMAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs