Citation Nr: 1226331 Decision Date: 07/31/12 Archive Date: 08/03/12 DOCKET NO. 09-00 800 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a pulled left hamstring. 2. Entitlement to service connection for an inner thigh groin pull. 3. Entitlement to a higher initial rating for a degenerative disc disease of the thoracolumbar spine, in excess of 20 percent prior to September 30, 2009, and in excess of 40 percent from September 30, 2009. 4. Entitlement to a compensable rating for a right calcaneal spur. 5. Entitlement to an initial rating in excess of 10 percent for a left hip disability. 6. Entitlement to a compensable rating prior to September 30, 2009, and a rating in excess of 10 percent from September 30, 2009 for a right hip disability. 7. Entitlement to a compensable rating for a right knee disability. 8. Entitlement to a compensable rating for a right ankle disability. 9. Entitlement to a compensable rating for a left ankle disability. 10. Entitlement to a compensable rating for a scar of the lumbar spine. 11. Entitlement to a compensable rating for sleep apnea. 12. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran; the Veteran's spouse ATTORNEY FOR THE BOARD T. M. Gillett, Counsel INTRODUCTION The Veteran served on active duty from February 1990 to July 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal, in part, from a November 2007 and July 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina. Due to the Veteran's place of residence, subsequent development was performed by the VA Regional Office in Lincoln, Nebraska (RO). In a February 2009 Supplemental Statement of the Case (SSOC), the RO reevaluated the Veteran's low back disability, assigning a 20 percent initial disability rating from the Veteran's date of discharge from service. Subsequently, in a December 2009 SSOC, a 40 percent disability rating for the low back disability was assigned from September 30, 2009 and a 10 percent rating was for the left hip disability from the Veteran's date of discharge from service. In May 2012, the Veteran, seated at the Cheyenne, Wyoming Regional Office, testified before the undersigned Veterans Law Judge, seated in Washington, DC, via videoconferencing (videoconference hearing). The issues of service connection for a pulled left hamstring and an inner thigh groin pull; higher initial ratings for a low back disability, a right calcaneal spur, a left hip disability, a right hip disability, a right knee disability, a right ankle disability, a left ankle disability, and a scar of the lumbar spine; and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. For the entire initial rating period under appeal, the Veteran's sleep apnea has been manifested by symptomatology requiring the use of a continuous airway pressure (CPAP) machine. 2. For the entire initial rating period under appeal, the Veteran's sleep apnea has not been manifested by chronic respiratory failure with carbon dioxide retention or cor pulmonale, or symptomatology requiring a tracheotomy. CONCLUSION OF LAW For the entire initial rating period under appeal, the criteria for a higher initial rating of 50 percent, but no greater, for sleep apnea have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6847 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). VA has a duty to notify a veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. In order to meet the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must (1) inform the veteran about the information and evidence necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. VCAA notice should be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The United States Court of Appeals for Veterans Claims (Court) held in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include (1) the veteran's status; (2) the existence of a disability; (3) a connection between the veteran's service and the disability; (4) the degree of disability; and (5) the effective date of the disability. The Court held that upon receipt of an application for a service connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim, and to provide the veteran with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. This notice must also inform the veteran that a disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id. In this case, a VCAA notice letter sent in February 2010 satisfied the provisions of 38 U.S.C.A. § 5103(a). In this letter, VA informed the Veteran about the information and evidence not of record that was necessary to substantiate the claim; the information and evidence that VA would seek to provide; the information and evidence the Veteran was expected to provide; and the information regarding disability ratings and effective dates required by Dingess. Because this appeal arises from the Veteran's disagreement with the initial rating assigned following the grant of service connection for sleep apnea, no additional notice is required. The Court and the United States Court of Appeals for the Federal Circuit (Federal Circuit) have held that, once service connection is granted the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). In March 2010 and June 2010, respectively, VA provided the Veteran with VA medical examinations to determine the nature, etiology, and severity of the Veteran's sleep apnea. As the March 2010 and June 2010 VA medical examination reports were written after reviews of the claims file, interviews with the Veteran, examinations of the Veteran, and contain findings regarding the severity of the Veteran's sleep apnea, supported by clinical data, the Board finds that the March 2010 and June 2010 VA medical examination reports are adequate for VA purposes. Under these circumstances, there is no duty to provide an additional medical examination or opinion. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In view of the foregoing, the Board finds that VA has fulfilled its duties to notify and assist the Veteran in the claim under consideration. Adjudication of the claim at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Disability Rating Criteria Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C.A. § 1155. Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2011). The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21 (2011). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. §§ 3.102, 4.3. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, as in this case, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. In such instances, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). Under the provisions of Diagnostic Code 6847, a noncompensable rating for sleep apnea is assigned if a veteran is asymptomatic, but still has a documented sleep disorder involving breathing. 38 C.F.R. § 4.97, Diagnostic Code 6847. A 30 percent rating is assigned if there is persistent daytime hypersomnolence. Id. A 50 percent disability rating contemplates sleep apnea that requires use of a breathing assistance device such as a CPAP machine. Id. The highest rating of 100 percent is warranted for chronic respiratory failure with carbon dioxide retention or cor pulmonale, or where a tracheostomy (tracheotomy) is required. Id. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the veteran. By reasonable doubt is meant one that exists because of an approximate balance of positive and negative evidence that does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. The Board has reviewed all of the lay and medical evidence in the Veteran's claims folder. The Board finds that the Veteran is competent to report the symptoms and impairments associated with his sleep apnea. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (holding that lay statements may serve to support a claim by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability that are susceptible of lay observation). The Board has not discounted lay evidence regarding the Veteran's sleep apnea because it is lay evidence or because it was reported by the Veteran. See Kowalski, 19 Vet. App. at 171 (holding that a history given by a veteran that has not been found by the Board to be inaccurate is not a basis for discounting an opinion based on that history). That being said, the Board has an obligation to determine the credibility of all evidence, lay and medical. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the duty to assess the credibility and weight to be given to the evidence). The Board has considered all evidence of record as it bears on the question of a higher initial rating. See 38 U.S.C.A. § 7104(a) (West 2002 & Supp. 2011) ("Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 5107(b) ("Secretary shall consider all information and lay and medical evidence of record in a case"). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran's appeal. (CONTINUED ON NEXT PAGE) Initial Rating for Sleep Apnea For the entire initial rating period under appeal, the Veteran essentially contends that his sleep apnea has caused greater symptomatology than that contemplated by the noncompensable (zero percent) rating currently assigned under 38 C.F.R. § 4.97, Diagnostic Code 6847. Specifically, the Veteran indicates that his sleep apnea requires the use of a CPAP machine in order to breathe at night. Having reviewed the evidence of record, the Board finds that, for the entire initial rating period under appeal, the Veteran's sleep apnea has been manifested by symptomatology more nearly approximating sleep apnea requiring the use of a breathing assistance device such as a CPAP machine, consistent with a 50 percent rating under Diagnostic Code 6847. 38 C.F.R. § 4.97. Reviewing the evidence of record, in an October 2009 VA treatment record, a VA examiner, reviewing the results of a July 2009 VA sleep study, diagnosed the Veteran as having obstructive sleep apnea. In a November 2009 VA treatment record, a VA examiner prescribed a CPAP machine for treatment of the Veteran's sleep apnea. In a February 2010 VA treatment record, VA examiners reported that the Veteran was using the CPAP machine for the correct number of days, but not the correct number of hours. The VA examiners advised the Veteran as to the CPAP's proper use as its usage was necessary in treating his sleep apnea. Subsequent VA treatment records, to include the March 2010 and June 2010 VA medical examination reports, indicate that the Veteran was using a CPAP machine to treat his sleep apnea. Considering this evidence, the Board finds that, for the entire initial rating period under appeal, the Veteran's sleep apnea has been manifested by symptomatology more nearly approximating sleep apnea requiring the use of a breathing assistance device such as a CPAP machine, consistent with a 50 percent rating under Diagnostic Code 6847. Id. The Board further finds that the weight of the evidence demonstrates that the criteria for an initial rating in excess of 50 percent for the Veteran's service-connected sleep apnea have not been met for the entire initial rating period under appeal. Specifically, for the entire initial rating period under appeal, the Veteran's sleep apnea has not been manifested by symptomatology more nearly approximating chronic respiratory failure with carbon dioxide retention or cor pulmonale, or a condition where a tracheostomy (tracheotomy) is required, as needed for the next higher 100 percent rating under Diagnostic Code 6847. Id. For the entire initial rating period under appeal, the VA treatment records, to include the March 2010 and June 2010 VA medical examination reports, do not contain any medical findings indicating chronic respiratory failure with carbon dioxide retention or cor pulmonale. In addition, the VA treatment records contain no notation indicating that the Veteran might require a tracheotomy due to his sleep apnea. Reviewing the lay evidence, in the June 2010 VA medical examination report, the Veteran indicated that he occasionally had brief instances of shortness of breath, lasting only a few seconds, maybe every other day, unrelated to any activity. The Veteran stated that he did not experience any coughing, wheezing, dyspnea on exertion, or true shortness of breath during which he felt as if he was being smothered. Furthermore, the Veteran reported no instances of cor pulmonale and did not indicate any reason why he would need a tracheotomy due to his sleep apnea disability. For the reasons stated above, for the entire initial rating period under appeal, the Board finds that the criteria for a higher initial rating of 50 percent, but no greater, for sleep apnea have been more nearly approximated. See id. As the preponderance of the evidence weighs against the grant of an even higher initial rating for the entire initial rating period under appeal, the benefit of the doubt doctrine does not apply to this aspect of the appeal. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration The Board has considered whether referral for consideration of an extraschedular evaluation is warranted for sleep apnea. In exceptional cases, an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2011). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of a veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe a veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate a veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (stating that related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the Rating Schedule is inadequate to evaluate a veteran's disability picture, and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, 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 extraschedular rating. Id. Regarding the Veteran's service-connected sleep apnea, turning to the first step of the extraschedular analysis, the Board finds that all the symptomatology and impairment caused by the Veteran's sleep apnea is specifically contemplated by the schedular rating criteria (38 C.F.R. § 4.97, Diagnostic Code 6847), and no referral for extraschedular consideration is required. The schedular rating criteria, Diagnostic Code 6847, specifically provide for disability ratings based on a combination of history, symptoms, and clinical findings. In this case, considering the lay and medical evidence, the Veteran's disability is manifested by sleep apnea requiring the usage of a CPAP machine for treatment purposes. For this reason, the disability picture is contemplated by the Rating Schedule, and the assigned schedular rating is, therefore, adequate. In the absence of exceptional factors associated with sleep apnea, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER A 50 percent rating, but no greater, for sleep apnea is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND The Board finds that additional development is required regarding the issues of service connection for a pulled left hamstring and an inner thigh groin pull; and higher initial ratings for a low back disability, a right calcaneal spur, a left hip disability, a right hip disability, a right knee disability, a right ankle disability, a left ankle disability, and a scar of the lumbar spine; and entitlement to TDIU. 38 C.F.R. § 19.9 (2011). Regarding the Veteran's claim for service connection for a pulled left hamstring, in a June 1999 service treatment record, the Veteran reported experiencing pain in the left hamstring for the previous two weeks. Upon examination, the service examiner indicated tenderness upon palpation. The service examiner diagnosed a muscle strain. In a subsequent June 1999 service treatment record, the Veteran reported experiencing a left hamstring pull, causing pain upon running. The service examiner diagnosed a left hamstring pull. Subsequently, in a September 1999 service treatment record, the Veteran indicated that he had experienced a hamstring strain which he believed had progressed to become low back pain. Subsequent service treatment records contain no notation indicating further diagnosis or treatment for a left hamstring injury. Regarding the claim for service connection for an inner thigh groin pull, in an October 2001 service treatment record, the Veteran indicated that he had pulled a muscle in his groin the previous day. After an examination, the service examiner diagnosed an inner thigh muscle pull. Neither the service examiner nor the Veteran identified on which side of the groin the Veteran experienced the pull. Subsequent service treatment records contain no notation indicating treatment for an inner thigh groin pull. In his May 2007 claim for service connection, the Veteran indicated that he was seeking service connection for both a pulled left hamstring and an inner thigh groin pull, but did not make any notation regarding which lower extremity was supposedly injured in each instance during service. In a June 2007 VA pre-discharge medical examination report, the VA examiner did not report having reviewed the claims file prior to examining the Veteran. In comments to the June 2007 VA examiner, the Veteran indicated that both the hamstring pull and the groin pull occurred on his right side. Upon examination, the VA examiner did not find any disorder related to a hamstring pull or a groin pull. Since the date of the June 2007 VA pre-discharge medical examination, the Veteran has made very few statements regarding his in-service hamstring and groin injuries; however, in a December 2009 VA treatment record, the Veteran reported experiencing pain in the left groin area. Moreover, at the May 2012 Board videoconference hearing, the Veteran indicated that he had pain in his left hamstring and groin. The Board notes that the June 2007 VA examiner did not review the claims file prior to writing the June 2007 VA pre-discharge medical examination report and it appears that the examiner examined the wrong hamstring. The Court has ruled that, once VA undertakes the effort to provide an examination, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, an additional VA examination will be necessary to assist in determining the nature and etiology of the Veteran's claimed left hamstring disorder. Regarding the inner groin pull, the Board notes that the October 2001 service treatment record did not indicate which side of the Veteran's groin was affected by the groin pull. Moreover, the Veteran has experienced pain in the left groin, as noted by the December 2009 VA treatment record. At the May 2012 hearing, the Veteran stated that his hamstring and groin disorders were all part of his left leg problems. Considering this evidence and the June 2007 VA examiner's error regarding the examination of the Veteran's left hamstring, the Board finds that an additional VA examination will be necessary to assist in determining the nature and etiology of the Veteran's claimed inner thigh groin pull. See id. Moreover, the Veteran was never issued notice in accordance with the VCAA regarding the issues of service connection for a pulled left hamstring and an inner thigh groin pull, As such, as part of this remand, VCAA notice should be issued to the Veteran regarding his claims for service connection for a pulled left hamstring and an inner thigh groin pull. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Regarding the Veteran's claims for higher initial ratings for a low back disability, a right calcaneal spur, a left hip disability, a right hip disability, a right knee disability, a right ankle disability, a left ankle disability, and a scar of the lumbar spine, the Board notes that the Veteran was last provided with a VA examination to determine the severity of these service-connected disabilities in September 2009. At the May 2012 Board videoconference hearing, the Veteran entered testimony indicating that the above-mentioned service-connected disabilities had increased in severity since the date of the September 2009 VA medical examination. VA's General Counsel has interpreted that, when a veteran asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. See VAOPGCPREC 11-95; see also, e.g., Caffrey v. Brown, 6 Vet. App. 377, 381 (1995); Green v. Derwinski, 1 Vet. App. 121, 124 (1991); 38 C.F.R. § 3.327 (2011). Moreover, at the May 2012 Board videoconference hearing, the Veteran testified that he had undergone continuous treatment for the aforementioned disorders at VA medical centers; therefore, as part of this remand, any outstanding VA treatment records not currently associated with the claims file should be procured, to include any created after June 24, 2010, the date of the last VA treatment record currently of record. The issue of entitlement to a TDIU was raised by the Veteran during his May 2012 videoconference hearing. In this regard, the Board notes that in Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a request for a TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim, or, as part of a claim for increased compensation. Accordingly, the Board has jurisdiction of the issue of entitlement to a TDIU and that issue has been added to the present appeal. The VA examination should address whether unemployability due to his service-connected disabilities is demonstrated. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should send the Veteran proper VCAA notice, in accordance with 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159(b) specific to the claims for service connection for a pulled left hamstring and an inner thigh groin pull. 2. The AMC/RO should ask the Veteran to identify the names, addresses, and approximate dates for all VA and non-VA health care providers who provided treatment for his pulled left hamstring, inner thigh groin pull, low back disability, right calcaneal spur, left hip disability, right hip disability, right knee disability, right ankle disability, left ankle disability, and scar of the lumbar spine since June 24, 2010, the date of the last treatment record on file. When the requested information and any necessary authorizations have been received, the AMC/RO should attempt to obtain copies of all pertinent records which have not already been obtained. At a minimum, the AMC/RO should secure any outstanding VA treatment records dated since June 24, 2010. 3. Thereafter, the Veteran should be afforded a VA medical examination, performed by a qualified VA examiner, in order to evaluate the etiologies of the Veteran's claimed pulled left hamstring and inner thigh groin pull; and the current severities of the Veteran's service-connected low back disability, right calcaneal spur, left hip disability, right hip disability, right knee disability, right ankle disability, left ankle disability, and scar of the lumbar spine. The claims file should be furnished to the VA examiner for review and the report compiled by the VA examiner should indicate whether the claims file was made available and reviewed. All indicated tests and range of motion studies, should be conducted. (a) Regarding the Veteran's claimed pulled left hamstring and inner thigh groin pull, following a review of the relevant evidence in the claims file, a physical evaluation, and any diagnostic tests and/or additional examinations that are deemed necessary, the VA examiner should offer the following opinions: i. Is it at least as likely as not (50 percent or greater probability) that the Veteran's claimed pulled left hamstring disorder had onset during service or is causally related to any incident of service, to include the June 1999 in-service report of a pulled left hamstring? ii. Is it at least as likely as not (50 percent or greater probability) that the Veteran's claimed inner thigh groin pull disorder had onset during service or is causally related to any incident of service, to include the October 2001 in-service report of an inner thigh muscle pull? The VA examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as it is to find against causation. A rationale should be provided for any opinion or conclusion expressed. If the VA examiner is unable to provide the requested opinions with what is considered to be a generally accepted degree of medical certainty, i.e., without resorting to speculation, the reasons should be so stated. The VA examiner should in such case explain why it would be speculative to respond. (b). Regarding the degenerative disc disease of the thoracolumbar spine, the claims file must be made available to the examiner in conjunction with the examination. Any and all indicated evaluation studies and tests deemed necessary by the examiner should be accomplished. Range of motion studies should be accomplished. The examiner should identify the existence, and frequency or extent, as appropriate, of all neurological symptoms associated with the Veteran's lumbar spine, to include radiculopathy. The examiner should also render specific findings as to whether, during the examination, there is objective evidence of (1) pain on motion, weakness, excess fatigability, and/or incoordination associated with the lumbar spine (any such additional functional loss in terms of additional degrees of limited motion of the lumbar spine) and (2) any ankylosis of the lumbar spine, and if so, whether such is favorable or unfavorable, and the extent of such ankylosis. The VA examiner should also provide an opinion as to whether any neurological symptomatology equates to "mild," "moderate," "moderately severe," or "severe" incomplete paralysis or complete paralysis of the affected nerve. Finally, the examiner should provide an opinion as to the duration of any incapacitating episodes of intervertebral disc syndrome that the Veteran has experienced during the past 12 months, and the evidence used to form that opinion. The opinion should also reflect that a review of the claims file has been accomplished. (c). Regarding the Veteran's right calcaneal spur, the VA examiner should comment on whether the right calcaneal spur results in any limitation of motion of the foot. If not, the VA examiner should indicate whether the Veteran's right calcaneal spur results in symptoms more nearly approximating bilateral weak foot, acquired claw foot or pes cavus, unilateral metatarsalgia or Morton's disease, unilateral hallux valgus, unilateral severe hallux rigidus, hammer toe, malunion/nonunion of tarsal or metatarsal bones, or pes planus. (d). Regarding the Veteran's left and right hip disabilities, the VA examiner should identify all hip orthopedic pathology found to be present. The VA examiner should conduct all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, the VA examiner should express any functional loss in terms of additional degrees of limited motion of the Veteran's hips. (e). Regarding the Veteran's right knee disability, the VA examiner should conduct all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, the VA examiner should express any functional loss in terms of additional degrees of limited motion of the Veteran's right knee. The examiner should also indicate whether there is subluxation and/or lateral instability of the knee and, if so, whether it is slight, moderate, or severe. (f). Regarding the Veteran's right and left ankle disabilities, the VA examiner should perform all appropriate tests and studies, including range of motion testing, and should describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, the VA examiner should express any functional loss in terms of additional degrees of limited motion of the Veteran's right and left ankles. (g). Regarding the Veteran's scar of the lumbar spine, the VA examiner should provide a detailed description of the service-connected scar of the lumbar spine to include, but not limited to, the following: the measurements of the length and width of the scar, as well as the areas of the scar in terms of square inches or square centimeters; whether the scar is superficial (not associated with underlying soft tissue damage); whether the scar is unstable (frequent loss of covering of skin over scar); whether the scar is painful on examination; and whether the scar results in limited motion or other limitation of function of an affected body part. If so, the examiner should describe in detail the limitation(s), and the extent and severity thereof. If the scar does not cause limited motion or other limitation of function of an affected body part, the examiner should specifically so state. (h). The examiner should offer an opinion as to whether the Veteran is unable to secure or maintain substantially gainful employment solely as a result of the combined effect of his service-connected disabilities. The examination report must include a complete rationale for all opinions and conclusions reached. 4. After completion of the foregoing and all other necessary development, the AMC/RO should re-adjudicate the claims for service connection for a pulled left hamstring and an inner thigh groin pull; and higher initial ratings for a low back disability, a right calcaneal spur, a left hip disability, a right hip disability, a right knee disability, a right ankle disability, a left ankle disability, and a scar of the lumbar spine; and entitlement to TDIU. If any benefit sought remains denied, the Veteran and the representative should be furnished a SSOC, and should be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may adversely affect the outcome of the claims. See 38 C.F.R. § 3.655 (2011). The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs