Citation Nr: 1301014 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 97-13 632A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a right hip disorder, claimed as avascular necrosis. 2. Entitlement to service connection for a cervical spine disorder, including as secondary to a service-connected low back disability. 3. Entitlement to service connection for bilateral carpal tunnel syndrome secondary to several service-connected disabilities. 4. Entitlement to a rating higher than 40 percent for the low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty (AD) from July 1968 to July 1970. He later served on active duty for training (ACDUTRA) in the Puerto Rico National Guard and Florida Army National Guard from January 1979 to November 1992. This appeal to the Board of Veterans' Appeals (Board) is from a February 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Previously, in December 2004, the Board remanded this case to the RO for additional development and consideration. A rating decision in October 2007, on remand, granted service connection for tinea cruris (claimed as a rash and skin spots), a claim that had been on appeal to the Board. The Veteran did not in response appeal either the initial rating or effective date assigned for that disability, so that claim is no longer at issue. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement (NOD) thereafter must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and/or effective date). Thereafter, in a February 2009 decision and remand, the Board in pertinent part reopened the claim for service connection for a right hip disorder upon presentation of new and material evidence. The Board then remanded the remaining claims, including for service connection for a right hip disorder on a merits (de novo) basis, for further development and adjudication. The case since has been returned to the Board. In July 2010, the Veteran provided additional evidence consisting of a private EMG nerve conduction study, accompanied by a waiver of initial consideration by the RO as the Agency of Original Jurisdiction (AOJ). So the Board may consider this evidence in the first instance. See 38 C.F.R. §§ 20.800, 20.1304 (2012). The Board also recharacterizes a claim of entitlement to service connection for bilateral carpal tunnel syndrome to include as secondary to several disabilities (including a right hip condition), and not just as secondary to a service-connected low back disability. This is in light of the Veteran's assertions and what the evidence objectively shows. Moreover, there is no requirement to remand this restated claim back to the RO, inasmuch as the Board is granting service connection for bilateral carpal tunnel syndrome under the revised theory of entitlement. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the AOJ, the Board must consider whether the Veteran has been prejudiced). In this decision the Board is also deciding the claim for service connection for avascular necrosis of the right hip, indeed, also granting this claim, so not just the claim for service connection for bilateral carpal tunnel syndrome as secondary to this right hip disorder. The Board, however, is denying the claim for a higher rating for the low back disability. Whereas the remaining claim for service connection for a neck condition, including as secondary to the low back disability, is being remanded to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. The preponderance of the competent medical opinion evidence establishes that in all likelihood the Veteran's avascular necrosis of the right hip developed during his period of employment and concurrent service in the Florida National Guard in 1991. 2. The preponderance of the competent medical opinion evidence also establishes that in all likelihood his bilateral carpal tunnel syndrome developed secondarily to use of Canadian crutches primarily due to his underlying service-related right hip avascular necrosis. 3. He has not, however, had ankylosis of the thoracolumbar segment of his spine at any point during the consideration of his claim for a rating for this disability, nor is there competent and credible indication of incapacitating episodes of Intervertebral Disc Syndrome (IVDS) or other separately compensable neurological impairment, such as in the way of radiculopathy or sciatic neuropathy. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the condition of avascular necrosis of the right hip was incurred during his active military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303 (2012). 2. Also resolving all reasonable doubt in his favor, his bilateral carpal tunnel syndrome is proximately due to, the result of, or aggravated by his service-connected right hip disorder. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.310 (2012). 3. But the criteria are not met for a rating higher than 40 percent for his low back disability. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71; 4.71a, Diagnostic Code (DC) 5292 (prior to September 26, 2003), and DC 5237 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duties to Notify and Assist the Claimant The Veterans' Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2012), prescribes several requirements as to VA's duties to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. The implementing regulations were codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2012). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must inform the claimant of any information and evidence (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will seek to provide on the claimant's behalf. See also Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) ("Pelegrini II"). A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the so called "fourth" requirement that VA also specifically request the claimant to provide any evidence in his or her possession pertaining to the claim. 73 Fed. Reg. 23,353-56 (Apr. 30, 2008), codified later at 38 CFR 3.159(b)(1). The U. S. Court of Appeals for Veterans Claims (Court/CAVC) further held in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), that these 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, so including notice to the claimant that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted. In this decision, the Board is granting the benefits sought on appeal of entitlement to service connection for avascular necrosis of the right hip and for bilateral carpal tunnel syndrome. Hence, regarding these particular claims, even assuming, without deciding, that any error was committed as to implementation of the VCAA's duty to notify and assist provisions, such error was at most harmless in its application to adjudication of these matters, and need not be further discussed. See Bernard v. Brown, 4 Vet. App. 384 (1993). See also Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), affirmed, 499 F.3d 1317 (Fed. Cir. 2007). See, too, 38 C.F.R. § 20.1102. As to the remaining issue of an increased evaluation for a low back disability, through VCAA notice correspondence dated from December 2003 through March 2009, the RO and AMC notified the Veteran as to each element of satisfactory notice set forth under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The VCAA notice further indicated the joint obligation between VA and him to obtain pertinent evidence and information, stating that VA would undertake reasonable measures to assist in obtaining additional VA medical records, private treatment records and other Federal records. See Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). The relevant notice information also must have been timely sent. The Court in Pelegrini II prescribed as the definition of timely notice the sequence of events whereby VCAA notice is provided in advance of the initial adjudication of the claim. See 18 Vet. App. 112, 119-20 (2004). See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In this instance, the three sources of VCAA notice correspondence all were sent subsequent to the February 1997 rating decision on appeal adjudicating the Veteran's claim for increased rating, and thus not in accordance with the requisite timing-of-notice standard. This notwithstanding, the Veteran had opportunity to respond to the most recent March 2009 VCAA correspondence before issuance of the most recent June 2010 Supplemental Statement of the Case (SSOC) continuing the denial of his claim. If, for whatever reason, VCAA notice was not provided prior to the initial adjudication of a claim or, if provided, the notice was inadequate or incomplete, this timing error can be effectively rectified ("cured") by providing any necessary VCAA notice and then going back and readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC) - such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), affirmed, 499 F.3d 1317 (Fed. Cir. 2007). See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has clarified that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis. And as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing error, but, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of the claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). See also 38 C.F.R. § 20.1102. Here, there has not been any such pleading or allegation, much less showing. The RO/AMC furthermore has taken appropriate action to comply with the duty to assist the Veteran through obtaining records of VA outpatient treatment, private treatment records, and arranging for him to undergo VA Compensation and Pension examinations. See 38 C.F.R. §4.1 (for purpose of application of the rating schedule accurate and fully descriptive medical examinations are required with emphasis on the limitation of activity imposed by the disabling condition). In furtherance of his claim, the Veteran has provided additional private treatment records, and several personal statements. He did not request the opportunity for a hearing. There is no indication otherwise of any further relevant evidence or information which has not yet been obtained. The record as it stands includes sufficient competent evidence to decide the claim. Under these circumstances, no further action is necessary to assist the Veteran. In sum, the record reflects that the facts pertinent to the claim have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. That is to say, "the record has been fully developed," and it is "difficult to discern what additional guidance VA could [provide] to the appellant regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will adjudicate the claim on the merits. Service Connection Service connection is granted for current disability that is the result of a disease contracted or an injury sustained in the line of duty during active military service or, if a pre-existing condition, for aggravation of the condition during or by the service beyond the condition's natural progression. 38 U.S.C.A. §§ 1110, 1131, 1153 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303(a), 3.306 (2012). Active military service includes any period of active duty (AD) or active duty for training (ACDUTRA) during which the Veteran was disabled from disease or injury and any period of inactive duty training (INACDUTRA) during which the Veteran was disabled from injury (though not disease). 38 U.S.C.A. §§ 101(21), (22), (23), (24), 106, 1110, 38 C.F.R. §§ 3.6(a), (d), 3.303(a). See also Harris v. West, 13 Vet. App. 509, 511 (2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); and Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). Certain diseases are considered chronic, per se, including arthritis, and therefore will be presumed to have been incurred in service if manifested to a compensable degree of at least 10-percent disabling within one year after service. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). It also does not apply to claims predicated on ACDUTRA and INACDUTRA service, only AD, and there equally are no presumptions of soundness and aggravation concerning claims premised on ACDUTRA and INACDUTRA service. See Biggins, 1 Vet. App. at 477-78; Smith v. Shinseki, 24 Vet. App. 40 (2010). Reserve and National Guard service generally means ACDUTRA and INACDUTRA. ACDUTRA is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316 , 502, 503, 504, or 505. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). Basically, this refers to the two weeks of annual training, sometimes referred to as "summer camp," which each Reservist or National Guardsman must perform each year. It can also refer to the Reservist's or Guardsman's initial period of training. INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). Basically, this refers to the twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year and is often referred to as "weekend warrior" training. These drills are deemed to be part-time training. So to the extent the Appellant is alleging he has disability as a result of injury or disease incurred or aggravated during his time in the reserves, it must be remembered that only "Veterans" are entitled to VA compensation under 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(a). Thus, to establish his status as a "Veteran" based upon a period of ACDUTRA, he must establish that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). The same is true for establishing his entitlement to compensation for disability from injury, though not disease, incurred or aggravated during his INACDUTRA. Id. Moreover, National Guard duty is distinguishable from other reserve service in that a member of the National Guard may be called to duty by the governor of their state. "[M]embers of the National Guard only serve the federal military when they are formally called into the military service of the United States[; a]t all other times, National Guard members serve solely as members of the State militia under the command of a state governor." Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). Therefore, to have basic eligibility for Veterans benefits based on a period of duty as a member of a state National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States, see 10 U.S.C. § 12401, or must have performed "full-time duty" under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505. Id. So service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection also may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). The elements of a valid claim for direct service connection are as follows: (1) medical evidence confirming the Veteran currently has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). See also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Also of application to claims for direct service connection is the principle that where a chronic disease is shown during service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. On the other hand, continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. In this circumstance, a showing of continuity of symptomatology at the time of service discharge and continuing thereafter is required to support the claim. 38 C.F.R. § 3.303(b). See also Barr v. Nicholson, 21 Vet. App. 303 (2007); Savage v. Gober, 10 Vet. App. 494-97 (1997); Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. At 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection). Applicable VA law further provides for secondary service connection. In this regard, service connection may be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). In addition, a claimant is entitled to service connection on a secondary basis when it is shown that a service-connected disability has chronically, meaning permanently, aggravated a nonservice-connected disability. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). Under 38 C.F.R. § 3.310(b), any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service connected. In reaching this determination as to aggravation of a nonservice-connected disability, the baseline level of severity of the nonservice-connected disease or injury (prior to the onset of aggravation by service-connected condition) is compared to the current level of severity of the nonservice-connected disease or injury. See Notice, 71 Fed. Reg. 52,744-47 (Sept. 7, 2006), later codified at 38 C.F.R. § 3.310(b). Generally, a layperson is incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998) (citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder)). Lay testimony is deemed competent evidence with regard to matters within the purview of direct observation and firsthand knowledge, however. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is considered competent to report on that of which he or she has personal knowledge). Lay evidence may have direct relevance to establishing underlying components of a claim for service connection. In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) commented that competence to establish a diagnosis of a condition can exist when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Lay testimony where found credible is also competent to establish the presence of continuity of symptomatology for a claimed disability during and since separation from military service. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Federal Circuit Court further held in Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010) and in Waters v. Shinseki, 601 F.3d 1274, 1278 (2010), that it is error to suggest that lay evidence can never be sufficient to satisfy the requirement of 38 U.S.C.A. § 5103A(d)(2)(B) that there be a nexus between military service and a claimed condition. Lay evidence does however sometimes fall short of establishing this required linkage; if there is a simple condition, such as a separated shoulder or broken leg or arm, then lay evidence may be acceptable, whereas it will not be for, say, determining whether the Veteran has or had cancer and the etiology of it. The determination as to whether these requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A. Right Hip Disorder The Veteran's service treatment records (STRs) for his active duty service from July 1968 to July 1970 do not reference any signs, symptoms or diagnosis of a right hip condition. It was not until the latter portion of the Veteran's subsequent reserve duty service, in 1991 while serving in a full-time job position as a Supply Clerk with and concurrently as a member of the Florida National Guard, when right hip pathology began to manifest as indicated in contemporaneous VA medical records. A March 1991 nuclear medicine report involving a limited bone study was compatible with avascular necrosis of the head of the right femur. Later that month, the Veteran presented with a history of right hip pain, with unrestricted range of motion in the right hip, but pain at the extremes of motion. The diagnosis was grade II, early grade III avascular necrosis of the right femur. When seen in August 1991, the assessment was avascular necrosis of unknown etiology. It was further recommended that the Veteran have to continue with partial weightbearing on the right side and avoid activities, with no physical therapy and no running or jumping. Personnel records reflect that the Veteran was placed in a "light duty" status in March 1991, in which capacity he was prevented from lifting heavy items, carrying any load, remaining on his feet for prolonged periods, running, or other actions that might put a strain on his hip area. He was also deemed medically unfit for duty during his unit's annual training period for two weeks in April 1991, as well as for his selected military occupational specialty (MOS) school for later that year. He was later placed on a physical profile with regard to the condition of his right hip, amongst other unrelated medical conditions. An October 1991 x-ray indicated bony changes of the subarticular portion of the head of the femur consistent either with aseptic necrosis or old healed or healing compression fracture, with no significant interval changes since March 1991 study. An October 1991 private physician's letter sent to the Veteran's employer indicates that the Veteran had avascular necrosis of his hip which caused his hip joint to collapse over time. This process was accelerated with excessive walking, any running, or heavy lifting. It was recommended that he should not carry out these activities as it would make his condition worse. It was predicted that the Veteran would need hip replacement within the next 10 years. A December 1991 medical summary completed by a physician within the Veteran's Florida National Guard unit indicates that the Veteran had been in his usual state of health until eight months ago when he started developing progressive pain on his right hip which was associated with progressive limitation of range of motion. The Veteran stated that the symptoms started after completing a physical fitness test. He was initially evaluated at the Miami VA hospital where x-rays of the right hip and a bone scan demonstrated avascular necrosis of the right femoral head. Thereafter, he had undergone continued treatment which had consisted of nonsteroidal anti-inflammatories and physical therapy. A physical exam was completed, including x-rays which revealed bony changes of the subarticular portion of the head of the femur. The impression was of a progressive avascular necrosis of the right femoral head compatible with grade III or IV avascular necrosis. The Veteran had a retained range of motion that allowed him to perform his daily duties. It was thought that excessive stress on the hip might aggravate his condition. The Veteran was not considered fit for strenuous exercise. Since the changes of avascular necrosis would continue to progress, it was recommended that the Veteran be separated from the service. A February 1992 medical examination for purposes of separation from the Florida National Guard indicates that the right hip was capable of full range of motion, except for internal rotation limited to approximately 70 degrees. In May 1992, the Veteran underwent a private physician's medical examination which noted the reported medical history of in March 1991 having participated in physical training (PT), and injured his right hip. The Veteran had gone to a VA hospital and had an evaluation and bone scan which revealed avascular necrosis of the right hip. He was put on limited activities and informed that this may require surgical replacement of his hip at some time in the future. The physician indicated that the Veteran had multiple pathological conditions any one of which would make him unsuitable for the duties of his job and for being on active status in the National Guard. In part, the Veteran had an avascular necrosis of his right hip which he related to PT in March 1991, but the true cause must have been some incident several months prior to that. At this time, it was difficult to determine how much of his medical status was related to his job activity and to his National Guard activities. According to the physician, the Veteran's right hip pain "could have been aggravated by the PT." Later that month, on the basis of the foregoing examination, the Veteran was removed from his position of employment with the Florida National Guard due to medical reasons, including his right hip condition. An October 1992 lay statement from a former co-worker within the Florida National Guard unit attests to the fact that the Veteran's occupational duties as Supply Clerk/Armorer included lifting and carrying of heavy equipment, and loading and unloading of the same during every drill period of the unit. It was recalled that the Veteran on many occasions after completion of the drills would complain about severe pain in his lower back and hip. A March 1996 decision of the U. S. Department of Labor, Employees' Compensation Appeals Board, determined that the medical evidence submitted by the Veteran for purposes of that agency's findings was insufficient in establishing that his condition of avascular necrosis of the right femoral head was caused by his federal employment. Thereafter, the December 2007 letter from a private physician indicates right hip avascular necrosis as one of those conditions amongst the Veteran's medical profile, and opined that this condition, amongst others, was associated with the Veteran's military career. The January 2008 clinical evaluation report from Dr. A.A., MD, indicates that the Veteran had a history of right hip pain since injury while at work with the Florida National Guard in 1991. He was diagnosed as having avascular necrosis of the right hip at the time, but this condition was not certified to be related to his service in the National Guard. It was the opinion of this private physician that the Veteran's avascular necrosis of the right hip was the consequence of his activities at the Florida National Guard in 1991 and should be certified as such. The physician observed that the most frequent cause of avascular necrosis of hip in young people was trauma (and there copies of medical journal articles attached to support this point). The prognosis for avascular necrosis was progressive hip dysfunction with significant gait disturbance, which already the Veteran had, and eventually a significant amount of patients required hip replacement or similar type of major surgery to correct or palliate the pain and gait disturbance. In an April 2009 follow-up report, this same physician further indicated that the Veteran had a medical history that included right hip pain, which started while on serving in the Florida National Guard. According to the physician, since most of the Veteran's symptoms were residual from his days in the National Guard, it was reasonable to think that right hip condition, amongst other diagnosed clinical conditions, was related to the original injuries sustained while lifting and carrying heavy loads as part of duties in the National Guard. The Veteran underwent a comprehensive VA Compensation and Pension examination in March 2010, including for his claimed right hip condition. The Veteran described an acute onset of right hip pain while serving with the Florida National Guard, during an inventory assignment at a warehouse, and he continued with pain after initial medical evaluations and eventually imaging studies were ordered showing evidence of avascular necrosis of the right hip joint. The Veteran now continued with pain symptoms and was limited in activities that required prolonged ambulation or standing position. A physical examination was completed, including x-rays. The diagnosis given was right hip avascular necrosis. The VA examiner expressed the opinion that right hip avascular necrosis was at least as likely as not caused by or a result of the Veteran's service while in the Florida National Guard in 1991. The stated rationale was as follows: After careful evaluation of the claims file there is evidence documentation of a right hip condition (avascular necrosis) while in service in the Florida National Guard, previous to that date the files are silent for any type of hip condition. At the time of the incident the Veteran was a supply clerk and participated in a special inventory activity. It is well known that repetitive loads to a joint with inappropriate body mechanics could promote local blood compromise secondary to blood tamponade within a joint capsule in a few hours as an avascular necrosis. This process is common in weight bearing joints such as hip joints. Having reviewed the foregoing, the Board is of the opinion that the requirements for establishing service connection for right hip avascular necrosis are effectively met. There is no material question that the Veteran currently manifests the condition of right hip avascular necrosis, or at the very least residuals therefrom, and thus the only remaining dispositive question is one of medical nexus, i.e., whether the condition was incurred in or aggravated during a qualifying period of military service. 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 a relationship between that disability and an injury or a disease incurred in service."); Hickson, supra. See also Duenas v. Principi, 18 Vet. App. 512, 516 (2004); Pond v. West, 12 Vet. App. 341, 346 (1999). When considering the evidence at hand, the Board finds a sufficient basis in the record to award service connection for the condition claimed. To this effect, the Board observes at the outset that the Veteran's primary theory of entitlement raised is that he manifested right hip avascular necrosis initially in 1991 during a period of qualifying duty with the Florida National Guard. The available evidence is not without some contradiction as to the exact nature of the Veteran's service with his unit in the Florida National Guard, inasmuch as it is clear that in 1991 he was still in reserve duty status and had sporadic ACDUTRA and INACDUTRA scheduled for that year (most of it later cancelled duty to injury), but there is no definitive indication as to the nature of the Veteran's concurrent employment with the Florida National Guard as an Armorer/Supply Clerk. Ultimately, having conducted a thorough review of personnel records on file (including medical board proceedings at separation), and resolving any reasonable doubt on the subject of qualifying service in the Veteran's favor, pursuant to 38 C.F.R. § 3.102, the Board is satisfied that the Veteran in all likelihood had active duty in the National Guard during the time period in question in 1991 as opposed to civilian employment, and therefore in all reasonable likelihood had qualifying military service. The dispositive question then becomes one of whether the competent medical findings substantiate recovery in this case. The initial diagnosis of avascular necrosis in March 1991, about six months into the Veteran's period of long-term service with the Florida National Guard, weighs heavily in favor of this claim, as there is no prior such diagnosis of record. As a condition chronic in nature, avascular necrosis would also reasonably be expected to persist over time, in contrast to the kind of medical condition that might immediately resolve in symptomatology and thus have no linkage to present disability. While the question then remains of whether the condition of right hip avascular necrosis actually first manifested during this period of qualifying service (as opposed to representing the diagnostic outcome of an existing syndrome), the medical opinion evidence on the question of causation is also favorable, as indicated below. On this subject, the January 2008 opinion of the private physician directly relates the Veteran's avascular necrosis of the right hip to an injury while at work with the Florida National Guard in 1991, indicating in support of his conclusion that the most frequent cause of avascular necrosis in an individual the Veteran's age at the time was trauma. In an April 2009 addendum, the physician related the Veteran's diagnosed hip condition specifically to original injuries sustained while lifting and carrying heavy loads as part of duties in the National Guard. Thereafter, upon VA examination in March 2010, a similar conclusion was reached, that the Veteran's right hip disorder originated due to his National Guard service, involving repetitive motion injury with possible inappropriate body mechanics, a process common in weight bearing joints such as hip joints. Both of these opinions follow review of the particularized case history encapsulated within the claims file, and are duly supported by a clinical rationale, and thus constitute compelling medical evidence. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (factors for assessing the probative value of a medical opinion include the medical expert's access to the claims file and the thoroughness and detail of the opinion); Boggs v. West, 11 Vet. App. 334, 340 (1998). Moreover, there is no medical evidence to the contrary which might otherwise oppose the finding that the Veteran's right hip disorder was incurred during a qualifying period of service. Therefore, appropriate consideration of the record substantiates an award of service connection under the circumstances, based on favorable evidence from during service and physicians who have reviewed the medical background, as well as the lack of countervailing evidence. Consequently, the criteria for service connection for right hip avascular necrosis are deemed to have been met. B. Bilateral Carpal Tunnel Syndrome Associated with reserve duty personnel and medical records from 1991, in connection with the Veteran's evaluation and treatment for a right hip disorder, are lay statements from individuals who knew the Veteran, offered in connection with his official military separation proceedings. In an October 1991 statement, several of these individuals recounted that since the Veteran's "accident" in March 1991, affecting his right leg, they had seen the Veteran severely affected by having to walk with the aid of a cane or crutches in order not to worsen the condition any further. VA outpatient clinical records include an April 1995 entry regarding which the Veteran's primary complaint was of bilateral pain and parasthesias of the digits of the second and third fingers, principally on the dorsal aspect of the hands, which had been gradually progressing, with particularly decreased sensation after writing. The report of a May 1996 VA Compensation and Pension examination for the lumbar spine notes in passing that as read on a "Hospital Record" (source unspecified) due to the use of crutches, the Veteran had a bilateral carpal tunnel syndrome diagnosed by evaluating nerve conduction studies performed. Thereafter, in August 2006 correspondence the Veteran contended that he developed carpal tunnel syndrome in the capacity of working as a supply clerk with the Florida National Guard from 1991 to 1992 and using Canadian crutches, prescribed for him by VA physicians as a consequence of having had right hip and lower back disorders. In other nearly contemporaneous supporting statements, the Veteran has described having had considerable pain due to carpal tunnel syndrome, sometimes not having feeling in his hands and experiencing objects falling out of them involuntarily. The cramps and pains in his hands were progressive and with increased severity. This affected his daily life in such a way that he was not able to write for a prolonged period of time. The condition also affected his productivity at work, and he was not able to drive for long periods of time. Upon a December 2006 VA examination of the peripheral nerves, the Veteran indicated he had been prescribed crutches previously due to his right hip condition. He recalled to have developed numbness in the hands around that time, but there was no medical evidence of such medical encounters or complaints of numbness, since he never went to see a physician or complained to a physician about this symptom. After his release from the National Guard in 1992, there was no medical evidence of a diagnosis of carpal tunnel syndrome until 2003, when he was clinically diagnosed to have carpal tunnel syndrome bilaterally. Review of VA electronic medical records showed that the Veteran was complaining of hand numbness, particularly in the first, second, and third fingers around 2002. In 2003, he was seen by a hand surgeon, and was found with positive Tinnel's and Phalen's signs in both hands. He received pain relief injections, and was advised to continue using wrist braces. He had since continued with numbness on and off with certain positions of the hands at night when sleeping and during driving. Following a physical examination, the diagnosis that was given was of bilateral carpal tunnel syndrome or focal median entrapment neuropathy at the wrist level, present since around 2002, and not previously documented or present during active duty. The VA examiner expressed the opinion that the Veteran's carpal tunnel syndrome was more likely than not related to the chronic use of crutches prescribed for his hip problem. Given an analysis of the preceding, the Board deems the record sufficient to warrant a grant of service connection for bilateral carpal tunnel syndrome, as secondary to the Veteran's right hip avascular necrosis, the underlying condition now having been adjudicated service-connected. There is essentially competent medical opinion evidence before the Board in the form of the December 2006 VA examiner's opinion associating the Veteran's bilateral carpal tunnel syndrome with the continued use of Canadian crutches prescribed for this hip problem. This followed an extensive physical examination that confirmed to the VA examiner the presence of carpal tunnel syndrome, as well as a complete claims file review encapsulating the relevant medical history. The Board therefore considers this opinion to be highly probative medical evidence. As with the prior claim, moreover, there are no contradictory findings that would tend to weigh against the claim under consideration. Taking into account the foregoing opinion, in conjunction with the Veteran's own reported medical history on several occasions, there is a reasonable probability shown that the Veteran's use of crutches is one causative factor, if not the primary factor in bringing about the condition of bilateral carpal tunnel syndrome. Therefore, the Board finds that service connection is warranted for bilateral carpal tunnel syndrome, as secondary to service-connected right hip avascular necrosis. Increased Rating for the Low Back Disability Disability evaluations are determined by the application of a schedule of ratings (Rating Schedule) which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. § 4.1 (2012). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating a musculoskeletal disability based upon a range of motion, consideration is given to the degree of any additional limitation upon motion due to functional loss. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). This includes the analysis of additional functional impairment above and beyond the limitation of motion objectively demonstrated involving such factors as painful motion, weakness, incoordination, and fatigability, etc., particularly during times when these symptoms "flare up," such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. Id. See also 38 C.F.R. §§ 4.40, 4.45 and 4.59. Effective September 26, 2003, VA revised the criteria for evaluating all musculoskeletal disabilities of the spine to include. 68 Fed. Reg. 51,454 (Aug. 27, 2003). The Veteran's back disorder must be evaluated under both the former and revised criteria, though the revised criteria may not be applied at any point prior to the effective date of the change. See 38 U.S.C.A. § 5110(g) (West 2002 & Supp. 2012); VAOPGCPREC 3-2000 (Apr. 10, 2000); VAOPGCPREC 7-2003 (Nov. 19, 2003). Prior to the September 26, 2003 revision in rating criteria, 38 C.F.R. § 4.71a, DC 5292 pertained to limitation of motion of the lumbar spine. Under DC 5292, a 10 percent rating was warranted for slight limitation of motion; a 20 percent rating for moderate limitation of motion; and a maximum 40 percent rating for a severe limitation of motion. The terms "moderate" and "severe" among other components of the rating criteria are not expressly defined in the rating schedule. 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. Meanwhile, under the former DC 5289 for ankylosis of the lumbar spine, a 40 percent evaluation was warranted for favorable ankylosis, and a 50 percent evaluation for unfavorable ankylosis. Since the September 26, 2003 regulatory revision, disorders of the lumbosacral spine are to be evaluated in accordance with VA's General Rating Formula for Diseases and Injuries of the Spine. This rating formula provides for the assignment of a 10 percent rating when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent of more of the height. A 20 percent rating is for assignment upon a showing of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or a 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. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating may be assigned due to unfavorable ankylosis of the entire spine. Under notes to the rating formula: Note (1) Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, 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 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 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 (0 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. The Board also notes the applicable criteria for evaluation pursuant to IVDS. Under the provisions of 38 C.F.R. § 4.71a, DC 5293, in effect prior to September 23, 2002, pronounced IVDS warranted a maximum rating of 60 percent. 38 C.F.R. § 4.71a, DC 5293 (2001). Under the criteria in effect since September 23, 2002, IVDS is evaluated by one of two alternative methods, applying whichever results in the higher evaluation. First, the disability could be rated on the basis of the total duration of incapacitating episodes over the previous 12 months with again a maximum rating of 60 percent. An "incapacitating episode" is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a , DC 5293, Note 1 (2002). Second, IVDS from September 23, 2002, could be rated by separately evaluating the chronic orthopedic manifestations under the most appropriate orthopedic diagnostic code (DCs 5292 or 5295) and the neurological manifestations under the most appropriate neurologic diagnostic code(s), and then combining the separate evaluations under 38 C.F.R. § 4.25. "Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from IVDS that are present constantly, or nearly so. See 38 C.F.R. § 4.71a , DC 5293 (2002). The September 26, 2003 version of the rating criteria includes the same language from the previously revised regulation for rating IVDS under the General Rating Formula for Diseases and Injuries of the Spine or otherwise based upon the frequency and severity of its incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a, DC 5243 (2012). In connection with the present claim for increased evaluation, the Veteran underwent VA Compensation and Pension examination in May 1996. On an objective evaluation, there were no postural abnormalities of the back, or fixed deformities of the back. There was evidence of severe lumbosacral paravertebral muscle spasms. Range of motion of the lumbar spine was forward flexion to 40 degrees; backward extension to 5 degrees; and right and left lateral flexion and rotation 10 degrees. There was exquisite pain objectively on all movements of the lumbar spine. As to any evidence of neurological involvement, there was no muscle atrophy of the lower extremities. The Veteran had a normal muscle strength in all muscles of both legs, except the left ankle dorsiflexor muscle, extensor hallucis longus, with mild weakness graded IV/V. He had patellar reflexes +1 bilateral and symmetric. Achilles reflexes were +2 bilateral and symmetric. He had a positive straight leg raising and Lassegue sign of both legs. The diagnosis was residuals, lumbosacral myofascial syndrome, with lumbosacral arthritis, traumatic and left paracentral L4-L5 herniated nucleus pulposus, and L3-L4, L4-L5 bulging disk, by MRI. Upon July 1999 examination of the spine, the Veteran complained of low back pain with exacerbations and remissions of pain, with periods of locking. Low back pain radiated down the posterior lateral right lower extremity to the sole of the foot, and there was also reported numbness of the same distribution. He complained of occasional flare-ups with locking of the back, requiring him to lie in a supine position for several days. On range of motion testing, the Veteran demonstrated flexion to 50 degrees, painful at 30 degrees; extension to 10 degrees; lateral bending right 20 degrees, and left 25 degrees; and rotation 45 degrees in both directions. There was decreased lumbosacral curvature, and spasm of L2 to S1 on both sides of the paravertebral muscles. The diagnosis was traumatic arthritis, herniated nucleus pulposus L4-L5 and bulging disc L3-L4 and L4-L5 level; clinical left L4 radiculopathy. The Veteran underwent a VA neurological examination in July 1999, limited in its findings, which indicated an overall diagnosis of lumbosacral myofascial syndrome, with lumbosacral arthritis, traumatic; and left paracentral L4-L5 herniated nucleus pulposis, and L3-4, L4-5 bulging disc. Thereafter, upon repeat examination of the spine in January 2004, the Veteran indicated having had a low back pain with radiation to both posterior legs up to the calves associated with occasional numbness of the great toes. He referred symptomatology with more intensity in the right leg, and occasional cramps in the right calf. During the last year, he had taken several sessions of physical therapy to the lower back with temporary pain control. He described over the last year having had eight acute flare-ups of low back pain which functionally impaired him. He was able to walk unaided, though he used crutches about half of the time for ambulation. Range of motion testing revealed forward flexion of the thoracolumbar spine to 10 degrees, extension to 5 degrees, right and left lateral flexion to 10 degrees, and right and left lateral rotation 10 degrees. There was painful motion from the first degree to the last degree of the range of motion measured. The Veteran was additionally limited by pain, fatigue, weakness and lack of endurance following repetitive use of the thoracolumbar spine. There was objective evidence of painful motion on all movements of the thoracolumbar spine, with moderate to severe thoracolumbar spasm. However, there were no postural abnormalities of the thoracolumbar spine, or fixed deformities. A neurological evaluation showed diminished pinprick and smooth sensation on right S1 dermatome of the foot, and diminished pinprick and smooth sensation on the left L4-L5 dermatome. There was normal muscle development and strength in the lower extremities, except the hallucis longus bilaterally graded 4/5. Reflexes were normal. As to whether there were any incapacitating episodes of IVDS, the VA examiner observed there was no medical certificate issued for strict bedrest by a physician. The diagnosis was lumbosacral myofascial syndrome with lumbosacral arthritis, traumatic, status post herniated nucleus pulposus L4-L5. On examination again in July 2005, in relevant part, the Veteran's objective range of motion consisted of forward flexion of the thoracolumbar spine to 40 degrees, painful at 20 degrees; extension to 10 degrees, painful throughout; right and left lateral flexion to 20 degrees, painful throughout; and right and left lateral rotation 20 degrees, painful at 10 degrees. Neurological evaluation indicated an intact pinprick stimulation and examination of the lower extremities. Motor examination was normal in the lower extremities, with the exception of 4/5 muscle strength in the right hip area due to pain. The Veteran denied being hospitalized over the previous year due to IVDS, and denied being on sick call or recommended to have bedrest for several days due to lumbosacral pain. The diagnosis was of lumbosacral strain (myositis), and lumbosacral degenerative joint disease. Then upon a March 2010 VA general examination, including evaluation for the thoracolumbar spine, the Veteran described continued low back pain, with occasional radiation to both legs. He described difficult back bending, and prolonged walking and use of the standing position. There was no associated bowel or bladder dysfunction, numbness, paresthesias, leg or foot weakness, falls, or unsteadiness. The Veteran did describe severe flare-ups on a weekly basis, precipitated by physical activity. There were no incapacitating episodes of spine disease. Inspection of the spine showed normal posture, head position, and symmetry in appearance. Gait was antalgic. There was no indicating of abnormal spinal curvatures, apart from some lumbar flattening. There was no thoracolumbar spine ankylosis. Muscle strength in the lower extremities was generally measured at 4/5. Muscle tone was normal, and without atrophy. Lower extremity reflexes were normal. Objective range of motion was flexion to 45 degrees, extension to 10 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation 15 degrees. There was objective evidence of pain on active range of motion, but no additional limitation after three repetitions of range of motion. An MRI confirmed multilevel degenerative disc disease. The diagnosis given was multilevel degenerative discogenic disease and spondylosis of the lumbar spine; and lumbar myositis. The Veteran also underwent a distinct examination of the peripheral nerves. A provisional diagnosis was made of "lumbar radiculopathy, or sciatic neuropathy." The condition was described as chronic and gradual, and localized with occasional radiation to both legs. Following a thorough physical examination including an electromyography (EMG) study, however, the diagnosis was "no evidence of lumbar radiculopathy or sciatic neuropathy found this exam by clinical exam or by EMG." There is also a March 2010 private physician's EMG study report on file, with regard to the lower extremities, which indicates the result of a "normal study," with no evidence of lumbosacral radiculopathy at present time. The Board has given due consideration to this claim throughout the entire timeframe under review, including with regard to the former and revised versions of the rating criteria for evaluating musculoskeletal disorders of the spine. As to the evaluation of the orthopedic component of service-connected cervical spine disability, however, there is no tenable basis upon which to assign in excess of the present 40 percent disability rating under the applicable rating criteria. Essentially, under both the former and revised rating criteria, a 40 percent evaluation is the highest assignable evaluation taking into account limitation of motion in and of itself. The former DC 5292 provides for a maximum 40 percent evaluation for "severe" limitation of motion (pursuant to applicable law, the former criteria remains in effect even following the regulatory change, but in any event is not more beneficial to the claimant here given it is limited at 40 percent). In addition, the revised DC 5237, following the September 26, 2003 regulatory revision, permits a 40 percent evaluation for forward flexion of the thoracolumbar spine 30 degrees or less, but only permits a higher evaluation than 40 percent where there is joint ankylosis. In sum, the rating criteria does not allow for higher than a 40 percent rating where, as here, there is at least some retained joint mobility. Rather, any rating in excess of 40 percent requires a showing of ankylosis -- inherently meaning the lack of all mobility. See DC 5289 (former); and DC 5237, evaluated pursuant to a general rating formula (revised). See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) and Lewis v. Derwinski, 3 Vet. App. 259 (1992) (indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable). The Veteran clearly retains substantial mobility of the thoracolumbar spine, as shown by the most recent VA examination of March 2010 which indicated forward flexion to 45 degrees, approximately half of normal level of mobility. Nor did this mobility appreciably decrease on repetitive motion testing, as a form of recognized functional loss. Deluca v. Brown, supra; 38 C.F.R. §§ 4.45, 4.59. Accordingly, the orthopedic component of service-connected low back disability does not correspond to an evaluation in excess of 40 percent. The Board has likewise evaluated the evidence as to any extant neurological impairment associated with service-connected disability, and finds that this is not shown to be present. As to applying the criteria for IVDS, the Veteran has not manifested a severe neurological and orthopedic complex of symptoms best characterized as "pronounced" IVDS as to warrant a 60 percent evaluation under the former DC 5293. Evidence reflects that he has had some occasional reported radiculopathy, but little else in terms of neurological symptoms. Nor for that matter has the Veteran generally experienced any "incapacitating episodes" of IVDS consistent with a 60 percent evaluation under the revised DC 5293 and/or DC 5243. The Board has further considered whether there is the basis for assigning any separate additional rating for neurological signs and symptoms of a back disorder, but finds that this also is not supported by the record, inasmuch as two recent EMG studies in March 2010 effectively ruled out the presence of lumbosacral radiculopathy. Hence, the Board sees fit to continue the assignment of a 40 percent evaluation for a lower back disorder throughout the time period under review, under provisions of the VA rating schedule. The potential application of the various other provisions of Title 38 of the Code of Federal Regulations have also been considered, including 38 C.F.R. § 3.321(b)(1), which provides procedures for assignment of an extraschedular evaluation. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). In Thun v. Peake, 22 Vet. App. 211 (2008), the Court articulated a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation is found inadequate because it does not contemplate the claimant's level of disability and symptomatology, the Board must determine whether the claimant's disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. In this case, there initially is no basis to find that the Veteran's lower back disorder presents such an exceptional disability picture that the applicable schedular criteria are inadequate, particularly as the rating criteria are thorough, and he does not manifest or describe symptomatology outside of those criteria. Essentially, the rating criteria premised upon limitation of motion with associated pain and/or discomfort fairly accounts for nearly all of the Veteran's symptoms as presented. The rating criteria likewise properly take into the consideration the nature and extent of any associated neurological impairment. Thus, the Board cannot conclude that the Veteran's condition is consistent with an exceptional disability picture as to render the schedular rating criteria inadequate. The first stage of the standard for determining availability of an extraschedular rating not having been met, the potential application of the next two steps becomes a moot issue. Regardless, the Board will give these stages due consideration. However, the Veteran has not shown that his service-connected disability under evaluation have caused him marked interference with employment, meaning above and beyond that contemplated by his current schedular rating. The most recent VA examination of March 2010 reflects that the Veteran remains employed on a full-time basis, and that this has been the case for several years. Moreover, the Veteran's service-connected back disorder also has not necessitated frequent periods of hospitalization, or otherwise rendered impracticable the application of the regular schedular standards. In the absence of the evidence of such factors, the Board is not required to remand this case to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For these reasons and bases, the Board is denying the claim for a higher rating for the low back disability. This determination takes into full account the potential availability of "staged rating" based upon incremental increases in severity of this service-connected disability during the pendency of this claim under review. The preponderance of the evidence is against the claim, however, and under these circumstances the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER The claim of entitlement to service connection for a right hip disorder, claimed as avascular necrosis, is granted. The claim of entitlement to service connection for bilateral carpal tunnel syndrome secondary to the now service-connected right hip disorder also is granted. However, the claim for a rating higher than 40 percent for the low back disability is denied. REMAND The Board finds that additional development is warranted with regard to the remaining claim for service connection for a cervical spine disorder, including as secondary to a service-connected low back disability. As a preliminary matter, the Board outlines the pertinent applicable VA law. As previously indicated, service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303(a) (2012). Active military service for purposes of this provision includes qualifying ACDUTRA with regard to a disability due to disease or injury, and INACDUTRA for a disability from injury. 38 U.S.C.A. §§ 101(24), 106; 38 C.F.R. § 3.6. Moreover, service connection is available for a condition preexisting service provided it was aggravated during service beyond its natural progression. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Generally, a preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service. In order to rebut the presumption of aggravation, there must be clear and unmistakable evidence that the increase in severity was due to the natural progress of the disability. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Generally, also, there is a presumption of soundness, such that every person employed in the active military service shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1137. This notwithstanding, the presumption of soundness as well as the presumption of aggravation of a pre-existing condition do not apply to periods of ACDUTRA or INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). See also Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995). In this case, the record clearly reflects and the Veteran does not contest that there was an original 1973 neck injury in which the Veteran fractured one or more vertebrae while diving in shallow water, from which he did recover with some residual pain and discomfort, and which was wholly unrelated to any period of active duty or otherwise qualifying military service. The averred theory of entitlement is that the Veteran's reserve duties, particularly with the Florida National Guard in 1991, substantially and materially aggravated the pre-existing neck condition. Unfortunately, the Board does not yet have a reliable medical opinion which addresses this claimed theory of aggravation. The Veteran underwent a July 2005 VA Compensation and Pension examination of the thoracolumbar spine, and as relevant, the cervical spine. Regarding the diagnosed cervical strain (myositis), and cervical degenerative disease, the VA examiner indicated as follows: Cervical spine disorder is less likely than not related to patient's service-connected lumbosacral disability. Claims folder does not show any evidence of any cervical problems or complaints at time of onset of lumbosacral injury. Cervical spine was injured in 1973 after a diving accident, unrelated to lumbosacral injury. Patient began to complain in 1990s of cervical spine upon working in military service in Florida (years after lumbosacral injury). Cervical degenerative joint disease (seen in actual x-rays) is an aging condition not related to any injury. Thereafter, in its February 2009 remand, the Board recognized that the existing clinical evidence did not properly address this theory of claimed in-service aggravation, and remanded the claim, in pertinent part, for a competent medical opinion on this subject. In connection with a March 2010 VA Compensation and Pension examination, the examiner provided the following opinion insofar as the etiology of a cervical spine disorder: Cervical spine multilevel degenerative changes with spinal canal stenosis and decreased vertebral height mostly at C5 secondary to chronic compression fracture is less likely as not caused by or a result of the Veteran's military service. Rationale: There is evidence in claims file of documented history of cervical fracture previous to military service in 1973 secondary to diving injury in shallow water. This type of injury heals with immobilization (the Veteran had a halo vest and was on bed rest for weeks) but leaves a degenerative sequel as seen on the Veteran's imaging studies. The March 2010 VA examiner nonetheless did proceed to further express the opinion that the Veteran's "cervical myofascial pain syndrome is at least as likely as not secondary to the Veteran's military service." The stated rationale was: Cervical myofacial pain syndrome usually is secondary to repetitive mechanical stress and overload of muscles which can cause segmental fibrosis of muscle and as a consequence trigger points. Working conditions such as the one done to this Veteran at a warehouse inventory, could be the etiologic onset of his active myofascial pain condition. Upon review of the March 2010 VA examiner's opinion, the Board finds that its previous concerns raised in the February 2009 remand were not properly addressed. The resultant VA opinion, whether in regard to ruling out service connection for cervical spine degenerative changes, or even considering the likelihood of service connection for "cervical myofascial pain syndrome," lacks any consideration of the pre-existing neck injury from 1973, along with the dispositive question of in-service aggravation. For the reasons indicated, such an opinion is essential to properly resolve the instant matter. Under VA law, a remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board therefore returns this case to the March 2010 VA examiner for a supplemental opinion addressing the essential theory of in-service aggravation in this case. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (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). See also Barr v. Nicholson, 21 Vet. App. 303 (Fed. Cir. 2007) (once VA undertakes a VA examination in support of a claim, that examination must adequate or VA must notify the veteran why one will not or cannot be provided). Accordingly, this claim is REMANDED for the following additional development and consideration: 1. Request a supplemental or addendum opinion from the March 2010 VA examiner concerning the questions below; or in the alternative, in the event the March 2010 VA examiner is unavailable or unable to provide a supplemental opinion, schedule the Veteran for another appropriate VA compensation examination to determine the etiology of his cervical spine disorder. The claims file, including a complete copy of this remand, must be made available for review of the Veteran's pertinent medical history. In particular, the examiner must provide a supplemental opinion regarding whether the claimed cervical spine disorder which pre-existed the Veteran's period of service in the Florida National Guard in 1991 (due to a 1973 nonservice-related injury) clearly and unmistakably underwent aggravation by the Veteran's service beyond its natural progression. The VA examiner is reminded of the need to directly address this averred theory of in-service aggravation of pre-existing injury, in order to provide a definitive and properly substantiated medical opinion. The examiner must provide a complete rationale for all opinions and conclusions reached, whether favorable or unfavorable, citing the objective medical findings leading to the conclusions. * It is left to the designees' discretion whether the Veteran needs to be reexamined to make these necessary determinations. 2. Upon completion of the supplemental medical opinion and/or examination, review the examiners' report to ensure substantial compliance with the Board's directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Take any needed corrective action. 38 C.F.R. § 4.2. 3. Then readjudicate the claim in light of this and all other additional evidence. If the claim is not granted to the Veteran's satisfaction, send him an SSOC and give him an opportunity to respond to it before returning the file to the Board for further appellate consideration. He has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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. 2012). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs