Citation Nr: 1142172 Decision Date: 11/14/11 Archive Date: 11/30/11 DOCKET NO. 06-29 439 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for an eye disability, claimed as glaucoma. 2. Entitlement to a rating in excess of 30 percent for bilateral pes planus, with hammer digit syndrome, metatarsalgia, and Morton's neuroma, on an extra-schedular basis pursuant to 38 C.F.R. § 3.321, from February 19, 2008. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from October 1969 to August 1971. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2005 rating decision in which the RO, inter alia, denied the Veteran's claim for service connection for an eye disability (claimed as glaucoma). In March 2006, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in August 2006, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in September 2006. This appeal also arose from a March 2008 rating decision in which the RO granted service connection and assigned an initial 10 percent rating for bilateral pes planus, effective August 19, 2004. In March 2008, the Veteran filed an NOD, expressing disagreement with the initial rating assigned. In an August 2008 rating decision, the RO increased the initial rating to 20 percent, effective August 19, 2004. An SOC reflecting this increase was issued in August 2008, and a September 2008 statement from the Veteran was accepted as a substantive appeal. In February 2009, the RO awarded a 30 percent rating for bilateral pes planus, effective January 22, 2009, but denied a rating in excess of 30 percent prior to that date (as reflected in a February 2009 rating decision and supplemental SOC (SSOC)). In a September 2010 decision, the Board essentially re-staged the Veteran's ratings. The Board denied a rating in excess of 20 percent from August 19, 2004 to February 18, 2008, but granted a rating of 30 percent from February 19, 2008 onward. This decision was implemented via an October 2010 rating decision. With regard to the latter stage, the Board denied a rating in excess of 30 percent for this period of the appeal, but, noting that an issue of entitlement to an extra-schedular rating pursuant to 38 C.F.R. §3.321 had been raised, remanded this portion of the for further development. The Board also remanded the service connection claim on appeal for further development. In February 2011, the matter was returned to the Board. At that time, the Board again remanded the Veteran's claims to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence and consideration of a higher rating on an extra-schedular basis. After accomplishing further action, RO/AMC continued to deny the claims, as reflected in an April 2011 supplemental SOC (SSOC) and returned the matter on appeal to the Board for further consideration. As noted by the Board previously, although the Veteran was represented in the past by Julieanne E. Steinbacher, a private attorney, in February 2009, he granted a power-of-attorney in favor of Disabled American Veterans for the claims on appeal. As also previously noted, on the Veteran's Form 9, the Veteran indicated that he desired a hearing before a Veterans Law Judge at the RO, and subsequently indicated that he instead desired a Board video-conference hearing. However, in a December 2009 letter, the Veteran withdrew his request for a hearing. Since the last remand, the Veteran has submitted additional medical evidence, consisting of medical literature in support of his claim for service connection for glaucoma. In a July 2011 post-remand brief, the Veteran's representative waived the initial RO consideration of this evidence. See 38 C.F.R. § 20.1304 (2010). The Board's decision addressing the claim for a higher, extra-schedular rating for the Veteran's bilateral foot disabilities is set forth below. The claim for service connection for an eye disability, claimed as glaucoma, is addressed in the remand following the order; that matter is being remanded to the RO, via the AMC. VA will notify the appellant when further action, on his part, is required. As a final preliminary matter, the Board notes that the Veteran has raised the issues of entitlement to a rating in excess of 30 percent for irritable bowel syndrome (IBS), entitlement to service connection for hemorrhoids and sphincter impairment, secondary to IBS, entitlement to a total rating based on individual unemployability due to service-connected disabilities, and whether new and material evidence has been received to reopen a claim for service connection for bilateral hearing loss. It does not appear that these claims have yet been addressed by the RO. As such, these matters are not properly before the Board, and are thus referred to the RO for appropriate action. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. At no point since February 19, 2008 has the Veteran's bilateral pes planus, with hammer digit syndrome, metatarsalgia, and Morton's neuroma, been shown to be so exceptional or unusual to render the regular, schedular standards inadequate to rate the disability . CONCLUSION OF LAW The criteria for rating in excess of 30 percent for bilateral pes planus, with hammer digit syndrome, metatarsalgia, and Morton's neuroma, on an extra-schedular basis pursuant to 38 C.F.R. § 3.321, from February 19, 2008, are not met. 38 U.S.C.A. §§ 1151, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159. 3.321(b)(1) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. 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)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant 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, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in a September 2004 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for service connection for a bilateral foot disability, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. The November 2004 RO rating decision reflects the initial adjudication of the claim after issuance of the September 2004 letter. Post rating, a May 2008 letter, an August 2008 SOC, and a January 2010 SSOC set forth the rating criteria for evaluating disabilities of the feet. The May 2008 letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. In September 2010 and March 2011, following the Board's remands, the Veteran was afforded notice reiterating the type of information and evidence that must be submitted by the appellant to support his increased rating claim as well as that which would be obtained by VA, and advising him that he had one year to submit any additional information and/or evidence. After the issuance of the above-described notice, and affording opportunity for the Veteran to respond, the February 2009, August 2009, January 2010, December 2010, and April 2011 SSOCs reflect readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of this latter notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The Board also notes that April 2011 SSOC initially addressed the criteria set forth in 38 C.F.R. § 3.321,effectively providing notice to the Veteran of what is needed to support a claim for higher rating on an extra-schedular basis. Although this information was provided at the time of, and not prior to, the RO's adjudication of the extra-schedular claim, and was provided in an SSOC an not a letter specific to the matter of a higher, extra-schedular rating , neither the timing nor form of the notice, or any deficiency in the notice, is not shown to prejudice the Veteran. In the Board's own September 2010 and February 2011 remands, the Board discussed the provisions of 38 C.F.R. 3.321 and discussed what evidence was needed to support the claim for a higher rating on an extra-schedular basis. Indeed, the very point of the February 2011 remand of this issue was to cure the RO's failure to adjudicate the claim under this regulation; in so doing, the Board necessarily provided clear notice of the provisions of 38 C.F.R. 3.321 and of the evidence required to support a claim for a higher rating on an extra-schedular basis. Clearly, a reasonable person in the Veteran's position would have known from this information what he was required to submit in order to substantiate his claim. See Mlechick v. Mansfield, 503 F.3d 1340, 1344 (Fed. Cir. 2007) (VCAA notice error not prejudicial when a reasonable person could be expected to understand what was needed). Here, the Board is satisfied that the Veteran had actual knowledge of what was needed to substantiate his claim. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007). Accordingly, the Board finds that no prejudice to the Veteran will result from the adjudication of his claim in this Board decision. Rather, remanding this matter back to the RO for further VCAA development would be an essentially redundant exercise and would result only in additional delay of this matter. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file consists of service, VA treatment records, private treatment records and opinions, and VA examination reports. Also of record and considered in connection with this matter are various written documents provided by the Veteran, his wife, and his representative, on his behalf. The Board finds that no additional RO action to further develop the record in connection with the claim for a higher rating is required The Board is also satisfied that the RO has substantially complied with its February 2011 remand directives as they pertain to the claim for a higher, extra-schedular rating for bilateral hearing loss. See Stegall v. West, 11 Vet. App. 268, 271 (1998). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). In this regard, as directed by the Board, the AOJ secured additional VA treatment records, afforded the Veteran the opportunity to submit any additional evidence pertinent to the claim, and readjudicated the claim under the provisions of 38 C.F.R. § 3.321(b). See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Typically, where the question for consideration is entitlement to higher rating(s) assigned following an award of service connection, evaluation of the medical evidence since the grant of service connection to consider the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In this case, the RO initially assigned the following ratings for the Veteran's foot disabilities: 20 percent from the August 19, 2004 effective date of the grant of service connection through January 21, 2009, and 30 percent from January 22, 2009. In its September 2010 decision, the Board issued a decision essentially re-staging the ratings, assigning a 20 percent rating from August 19, 2004 through February 19, 2008, and 30 percent from February 19, 2008. At that time, the Board noted the possibility for a higher rating on an extra-schedular basis had been raised by the evidence-specifically, on VA examination in February 2008, the examiner opined that the Veteran's bilateral foot disabilities severely impacted his ability to work as a timberman. However, the Board also noted that the RO had not yet considered the provisions of 38 C.F.R. § 3.321(b) in adjudicating the Veteran's claim. Citing Bernard v. Brown, 4 Vet. App. 384, 394 (1993), the Board remanded this aspect of the claim in order to allow the RO to address the matter of a higher, extra extra-schedular rating, in the first instance. The matter was subsequently returned to the Board. However, as noted in the February 2011 remand, the RO failed to adjudicate the claim on an extra-schedular basis. In December 2010, following the Board's remand, an SSOC was issued but the RO failed to include any citation to 38 C.F.R. § 3.321(b) or discussion of whether the Veteran is entitled to a higher rating for his bilateral foot disability on an extra-schedular basis since February 2008. Accordingly, citing Stegall v. West, 11 Vet. App. 268 (1998) the Board remanded the matter again in order to accomplish this necessary development. In April 2011 another SSOC was issued. In this SSOC, the RO properly discussed the applicability of 38 C.F.R. § 3.321(b) in this case, and determined that an extra-schedular evaluation was not appropriate. As the adjudication in the first instance by the RO has been accomplished, the Board may now address the claim. Bernard, 4 Vet. App. at 394, The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, supra. Here, the Board finds that all of the symptoms documented in the record appear to be adequately addressed by the rating schedule. The Veteran's foot disability has been assigned a 30 percent rating under 38 C.F.R. §4.71a, Diagnostic Code 5284. Under this code, a 20 percent rating is assigned for moderately severe symptoms of a foot disability. A 30 percent rating is warranted for severe symptoms. A 40 percent rating is assigned with actual loss of use of the foot. On VA examination in February 2008, the Veteran described his pain level as usually a five, but it could get as high as a 10. He had no weakness and some stiffness when the pain was severe. No swelling, redness, or heat was noted. Feet were very fatigable due to the pain. Pain increased with walking, and at night when trying to rest. The frequency of his pain was related to his activity. The Veteran had a cane. He did not have corrective shoes, but he did have inserts. The Veteran's occupation as a timberman was severely impacted by his inability to walk. His productivity had decreased significantly over the past several years. The Veteran was unable to stand for more than 20 to 30 minutes, and unable to walk for any significant distance. Physical examination of the feet revealed good pulses. The feet were warm. There was normal hair distribution. There was bilateral hammer digit deformity noted of the toes two through five. The Veteran had a pes planus deformity. There was pain on palpation of the distal plantar aspect of the feet between the second and third metatarsal. There was no significant pain on compression of the heel. There was some mid-foot pain on palpation, as well as bilateral Tinel sign consistent with tarsal tunnel syndrome. No edema instability was found. Gait was normal, but the Veteran did use a cane for stability. Nonusual callosities were noted. The Veteran had no hallux valgus. There was active motion of the metatarsal phalangeal joint of the great toe. The Veteran had limited range of motion of the right and left foot. The Veteran was diagnosed with pes planus bilaterally, hammer digit syndrome two through five bilaterally, bilateral Morton's neuroma, metatarsalgia bilaterally, tarsal tunnel syndrome bilaterally, bilateral calcaneal spurs, and bilateral foot pain secondary to all aforementioned disabilities. In September 2008, the Veteran reported that he had symptoms of weakness and pain, which resulted in falls. Pain at night also kept the Veteran from sleeping. His wife further noted that in the most recent years, the Veteran's pain caused stumbling, which would sometimes result in further injury. His activity level and overall functioning were very much limited because of the pain in his feet. On VA examination in January 2009, the Veteran reported pain in his feet that caused sleeping disturbances and caused stumbling, weakness, and instability. He further complained of stiffness and a lack of endurance. He reported using a cane. On examination, there was no evidence of swelling or instability, although there was evidence of painful motion, tenderness, weakness, and abnormal weight bearing. There was no muscle atrophy, no skin or vascular abnormalities, no evidence of malunion or nonunion of the tarsal or metatarsal bones, and no muscle atrophy of either foot. X-rays showed bilateral Achilles enthesopathy. On VA examination in December 2009, the Veteran complained of pain, stiffness, and weakness while standing and walking, and swelling of the feet while walking. The Veteran used a cane for ambulation. He reported being unable to stand for more than a few minutes, and only able to walk one quarter of a mile. The Veteran had been fitted for orthotic inserts, which had a fair effect on relieving his symptoms. On physical examination of the bilateral feet, the examiner found no evidence of swelling or instability, but painful motion, tenderness, and weakness were noted. The Veteran had decreased strength with active resistance. The Veteran had hammertoes on the second, third, and fourth toes. Clawfoot and hallux valgus were not found. There was no evidence of malunion or nonunion of the tarsal or metatarsal bones. The Veteran had inward bowing at the achilles, with pain (but no spasm) on manipulation. No pronation was found. The Veteran had loss of muscle mass over each entire foot. The Veteran walked with a limp using a single cane. He was unsteady at times. X-rays of the feet revealed normal right and left feet. The Veteran noted that he retired in 2004 due to several service-connected disabilities, including his feet. As the Board found in the September 2010 decision, the evidence collectively shows that , since the date of the February 19, 2008 VA examination overall severe symptomatology associated with the Veteran's bilateral pes planus, with hammer digit syndrome, metatarsalgia and Morton's neuroma has been demonstrated. The Board noted that the Veteran's severe functional loss due to pain was contemplated in the increased rating assigned, consistent with the provisions of 38 C.F.R. §§ 4.40, and 4.45, and DeLuca v. Brown, 8 Vet. App. 202 (1995). Ad indicated, in this case, the Board finds that the applicable schedular criteria appear to be fully adequate to rate the disability under consideration. The rating schedule fully contemplates the described symptomatology, and provides for ratings higher than that assigned based on more significant functional impairment. The Board cannot find that the rating schedule is impractical in addressing any of the Veteran's symptomatology. In essence, all of the Veteran's symptomatology-namely, pain, weakness, a lack of endurance, instability, fatigue, decreased functionality, sleep problems, stiffness, and swelling, are contemplated in the "severe" level of impairment for which the 30 percent rating has been assigned. As noted in the prior decision, rating all the Veteran's foot disabilities together as one disability under Diagnostic Code 5284 affords him the highest possible rating. The Board observes that the words "slight, "moderate," and "severe," as used in the various diagnostic codes, to include , are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. As stated above, on these facts, the Board finds that the type and extent of symptoms shown are contemplated in the "severe" level of impairment indicated by the assignment of a 30 percent rating under Diagnostic Code 5284. The Board points out that, even if the applicable rating criteria were deemed inadequate to evaluate the disability, the disability has not objectively been shown to markedly interfere with employment (i.e., beyond that contemplated in the 30 percent rating assigned.) While, as the Board noted in the September 2010 remand, the February 2008 VA examiner indicated that the Veteran's bilateral foot disabilities severely impacted his ability to work as a timberman, "marked interference with employment" denotes interference with employment in some undefined manner over and above that which is contemplated in the schedular criteria (which involve "the average impairment in earning capacity in civil occupations resulting from disability"). See, e.g., 38 C.F.R. § 3.321; Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992). See also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (holding, "[a] high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment.") Here, despite the examiner's statement regarding the Veteran's work as a timberman, the evidence does not show general occupational impairment beyond that contemplated by his 30 percent rating. There is also no evidence that the Veteran's disability has necessitated frequent periods of hospitalization, or has otherwise rendered inadequate the regular schedular standards. In the absence of evidence of any of the factors outlined above, the criteria for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1), from February 19, 2008, are not met. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). See also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). As a final matter, the Board notes that in the September 2010 and February 2011 remands, as well as in the present decision, the issue of entitlement to a total rating based on individual unemployability due to service-connected disabilities has been referred to the RO for appropriate action. In this regard the Board notes that the referral of this issue does not preclude the adjudication above. The Court has held that because extra-schedular rating and TDIU ratings are measured differently, those claims are not inextricably intertwined). See Kellar v. Brown, 6 Vet. App. 157 (1994). Furthermore, the procedural posture of the extra-schedular rating claim here is merely a determination of whether a referral to the Director of the Compensation and Pension Service is required, i.e., whether the rating schedule is adequate for evaluating the Veteran's disability. As is apparent above, this determination is not intertwined with a TDIU analysis, which involves an analysis of whether a Veteran, who may or may not meet certain percentage requirements, is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. For all the foregoing reasons, the Board finds that there is no basis for referring this matter to the Director of Compensation and Pension Services for consideration of a higher, extra-schedular rating for the Veteran's bilateral pes planus, with hammer digit syndrome, metatarsalgia, and Morton's neuroma. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating on an extra-schedular basis, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER A rating in excess of 30 percent for bilateral pes planus, with hammer digit syndrome, metatarsalgia, and Morton's neuroma, on an extra-schedular basis pursuant to 38 C.F.R. § 3.321, from February 19, 2008, is denied. REMAND Unfortunately, the Board finds that further RO action on the Veteran's claim for service connection for an eye disability is warranted, even though such will, regrettably, further delay an appellate decision on these matters. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). At the time of the Board's September 2010 remand, the Veteran had not been provided an examination in connection with his claim for service connection for an eye disability. In February 2010, Dr. Bash, a private physician, submitted a medical opinion regarding the Veteran's claim for service connection for an eye disability (claimed as glaucoma) that did not provide for allowance of the claim, but raised a possible link between steroidal use for service- connected disabilities and glaucoma. The Board found that a medical examination and opinion-based on full consideration of the Veteran's documented medical history and assertions, and supported by a clearly-stated rationale was needed to resolve the claim for service connection, and the claim was remanded. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran was afforded an eye examination in December 2010, where the ophthalmologist was to offer an opinion as to each diagnosed eye disability as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability), that the disability had its onset in or is otherwise medically related to service or to service-connected disability. In rendering the requested opinion, the physician was to specifically consider the in-and post-service treatment records, Dr. Bash's February 2010 opinion, as well as the Veteran's contentions. The physician first found that the Veteran's ocular complaints were only related to refractive correction, which was found to be unrelated to military service. Thereafter, he submitted an addendum acknowledging that the Veteran had undergone recent procedures for narrow angle and open angle glaucoma, but noted, "there appear[ed] to be no relationship of his glaucoma (or ocular hypertension) to [the Veteran's] time in service." The physician provided no opinion as to the existence of any relationship between the Veteran's glaucoma and his service-connected disability(ies), to include prescribed medication for such disabilities. He also did not address any of the findings in Dr. Bash's February 2010 opinion. Dr. Bash supplied a January 2011 opinion that essentially affirmed his February 2010 opinion and noted that the VA examiner failed to discuss whether the Veteran's service-connected disabilities caused his glaucoma. Dr. Bash did not clarify, however, how the Veteran's glaucoma, which pre-dated any steroid prescription, was caused by the Veteran's steroid use. As such, in September 2011 the Board remanded the matter in order to undergo an additional VA ophthalmology examination by an appropriate physician. In March 2011 such an examination was conducted. That examiner, however, noted that the Veteran "has no current ocular complaints," and determined that there is a "lack of evidence to definitively diagnose the Veteran as having glaucoma." While the examiner went on to provide a negative nexus opinion on the issue of direct service connection, the examiner declined to address the questions regarding the relationship between the Veteran's glaucoma and his service-connected disability(ies), to include prescribed medication for such disabilities and did not address any of the findings of Dr. Bash. In this regard, the examiner concluded, "the 'glaucoma' relationship may be a mute [sic] point" in the absence of a current diagnosis of glaucoma. The Board finds that the very purpose of the Board's remand in resolving the issue of secondary service connection has been frustrated by the March 2011 examiner's failure to address the issue. Moreover, under current caselaw, the requirement that a claimant have a current disability before service connection may be awarded for that disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claim's adjudication. McClain v. Nicholson, 21 Vet. App. 319 (2007). Accordingly, the prior medical evidence of record, including the reports of Dr. Bash, is sufficient to establish the presence of a current disability within the meaning of McClain. Under these circumstances, the Board finds that the RO should, again, obtain a VA medical opinion to address the etiology of the Veteran's current eye disability/ies. Hence, the RO should arrange for the Veteran to undergo ophthalmology examination, by an appropriate physician, at a VA medical facility. The Veteran is hereby advised that failure to report to the scheduled examination, without good cause, may result in denial of the claim for service connection (as the original claim will be considered on the basis of the evidence of record). See 38 C.F.R. § 3.655 (2010). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination sent to him by the pertinent medical facility. On remand, the RO should also obtain and associate with the claims file all outstanding VA medical records. The record reflects that the Veteran has been receiving treatment at the VA Medical Center (VAMC) in Wilkes-Barre, Pennsylvania, as well as the Williamsport Community Based Outpatient Clinic. While the claims file currently includes treatment records dated to February 2010, more recent treatment records may now be available. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain from the St. Cloud VAMC any records of treatment, following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. Further, to ensure that all due process requirements are met, and that the record before the examiner is complete, the RO should also give the appellant another opportunity to present information and/or evidence pertinent to the claims remaining on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2010) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2010). The actions identified herein are consistent with the duties imposed by the VCAA. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim remaining on appeal. The RO's adjudication of the claim should include consideration of all pertinent evidence added to the claims file since the RO's last adjudication of the claim-to include, for the sake of efficiency, evidence submitted directly to the Board (notwithstanding the waiver of initial RO consideration of the evidence), Accordingly, this matter is hereby REMANDED to the RO, via the AMC, for the following action: 1. The RO should obtain from Wilkes-Barre VAMC and the Williamsport Community Based Outpatient Clinic all outstanding, pertinent records of evaluation and/or treatment of the Veteran, since February 2010. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. The RO should send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. The RO should also clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, the RO should assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, the RO should arrange for the Veteran to undergo ophthalmology examination, by an appropriate physician, at a VA medical facility. The entire claims file, to include a complete copy of the REMAND must be made available to the physician designated to examine the Veteran, and the report of examination should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the examining physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician should clearly identify all disability/ies affecting the eyes that currently exist(s), or was/were diagnosed at a time pertinent to this appeal , to include previously diagnosed glaucoma. In doing so, the examiner should presume the presence of a current diagnosis of glaucoma, even if the disability is found to be resolved on examination. If this is the case, the examiner should render the opinion based on the presence of glaucoma previously in this appeal. Then, with respect to each such diagnosed disability, the physician should offer an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability), that the disability (1) had its onset in or is otherwise medically related to service; or (2) was caused or is aggravated by any service-connected disability (to include any medication taken for such disability). If aggravation by service-connected disability is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. In rendering the requested opinion, the physician should specifically consider and address the in-and post-service treatment records, Dr. Bash's February 2010 and January 2011 opinions, as well as the Veteran's contentions. The physician should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 5. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 6. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claim for service connection for an eye disability, claimed as glaucoma, in light of all pertinent evidence (to particularly include all that added to the record since the RO's last adjudication of the claim) and legal authority. 8. If the benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process, and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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. 2010). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs