Citation Nr: 1306007 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 08-20 922 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a facial skin disorder. 2. Entitlement to service connection for a left hip disorder. 3. Entitlement to service connection for a right hip disorder. 4. Entitlement to service connection for a left heel spur. 5. Entitlement to an initial evaluation in excess of 10 percent for residuals of a left spontaneous pneumothorax. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Emily L. Tamlyn, Counsel INTRODUCTION The Veteran served on active military duty from September 1967 to September 1970 and from August 1971 to September 1994. These issues come before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs Regional Office (RO) in St. Louis, Missouri. In that decision, the RO denied claims for service connection for a bilateral knee disability, a facial skin problem, a bilateral hip disability, a back disability and a left heel spur. The RO also granted service connection for the residuals of left spontaneous pneumothorax and assigned a 10 percent rating, effective July 25, 2005. In July 2010, the Board remanded the appeal. In November 2011, the RO granted the claims for service connection for chronic lumbar strain and patellofemoral syndrome of the knees; these issues are no longer on appeal. Except with respect to the claims for service connection for the left and right hip disabilities, the Board finds there has been substantial compliance with the Board remand. The claims for service connection for left and right hip disabilities 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. A facial skin disability is not related to service. 2. A left heel spur is not related to service. 3. The residuals of a left spontaneous pneumothorax are manifested by forced expiratory volume in one second in excess of 71 percent of predicted; forced expiratory volume in one second to forced vital capacity (FEV-1/FVC) that is greater than 71 percent and diffusion capacity of the lung for carbon monoxide by the single breath method (DLCO SB) that is in excess of 66 percent of predicted. CONCLUSIONS OF LAW 1. A facial skin disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 2. A left heel spur was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 3. The criteria for an initial evaluation in excess of 10 percent for the residuals of a left spontaneous pneumothorax have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.21, 4.97, Diagnostic Code (DC) 6843 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The Veteran was sent a letter in May 2006 that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. The Veteran's appeal with regard to the residuals of a left spontaneous pneumothorax arises from disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed for this issue under VCAA. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Additionally, in cases where VA is unable to obtain records, or if after continued efforts to obtain federal records VA concludes that it is reasonably certain they do not exist or further efforts to obtain them would be futile, VA is to provide the claimant oral or written notice of that fact. 38 C.F.R. § 3.159(e). Unavailability of service department records does not create a heightened benefit of the doubt, but only a heightened duty on the part of VA to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision. Cromer v. Nicholson, 19 Vet App 215 (2005); Russo v. Brown, 9 Vet. App. 46, 51 (1996). Where service records are missing, VA also has a duty to search alternate sources of service records. Washington v. Nicholson, 19 Vet. App. 362 (2005). Here, in a memorandum dated in September 2006 and a report of contact generated the same month, the RO informed the Veteran that most of his service treatment records from his twenty-five plus years of service were unavailable. In August 2010, the Veteran was informed additional evidence was still needed for his claims and that alternative evidence could be submitted. A follow up notice was sent to the Veteran in November 2010, reminding him that it was ultimately his responsibility to see that VA received evidence for his claims. In his November 2007 notice of disagreement, the Veteran had stated that he had no further evidence to support his claims. The Board finds that the Veteran was properly informed regarding his unavailable service treatment records. The RO documented its attempts to find the service treatment records in a September 2006 memorandum; this included requests from the National Personnel Records Center (NPRC) and the Records Management Center (RMC). A May 2007 Personnel Information Exchange System (PIES) response showed that clinical records regarding in-service treatment for a collapsed lung in 1976 and a hernia operation in 1994 treatment at Scott Air Force Base were received. A pre-induction examination was received in August 2010. The Board finds that further attempts to obtain service treatment records would be futile and that proper steps were taken by the RO to obtain the records. See 38 C.F.R. § 3.159(e) (2012). VA records and records from the Veteran's TRICARE provider are in the file. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Veteran received VA examinations to evaluate the left spontaneous pneumothorax and for his claim for service connection for a left heel spur. However, the available records are silent as to any complaints or treatment for a facial skin disability. The Veteran has not reported current symptomatology or a continuity of symptoms and there is no other evidence that this condition might be related to service. For all of these reasons, the evidence does not indicate that the claimed disability may be related to active service such as to require an examination, even under the low threshold of McLendon. The Board's previous remand was to insure that the Veteran got notice to submit alternate evidence in lieu of the service treatment records; to obtain VA treatment records from 1995 and 1996, and records of treatment at Scott Air Force Base since 1994. The additional records were obtained. The Veteran was provided the additional notice in a letter dated in August 2009. The agency of original jurisdiction also issued a supplemental statement of the case after completing its development. Considering the above information, the Board finds there has been substantial compliance with the July 2010 Board remand. See, Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002). Service connection generally Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). Establishing service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Hickson v. West, 12 Vet. App. 247, 253 (1999). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Savage v Gober, 10 Vet. App. 488 (1997). 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); 38 C.F.R. § 3.303(b). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In adjudicating these claims, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses' personal knowledge. Barr, 21 Vet. App. at 309. For example, in Barr, the United States Court of Appeals for Veterans Claims (Court) held that varicose veins were a disability capable of lay observation for the purpose of establishing service connection. Under 38 C.F.R. § 3.159(a)(2) (2012), competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. Id. The Board must also assess the credibility, and therefore the probative value of the evidence of record in its whole. Owens v. Brown, 7 Vet. App. 429 (1995); Madden v. Gober, 125 F. 3d 1477 (Fed. Cir. 1997). In determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza, 7 Vet. App. 498. Service connection for a facial skin disability The Veteran contended in his July 2005 claim that he was treated for a skin problem in the face area in June 1974 in Landstuhl, Germany. In his November 2007 notice of disagreement, his representative stated had no other information to support this claim. Available in service treatment records show the Veteran was admitted to the hospital in February 1976 for a left pneumothorax. This record noted no allergies. The clinical record also noted no previous medical illnesses. A complete physical was normal. A March 1994 pre-operative assessment and intraoperative nursing plan (for hernia surgery) shows that under assessment of patient needs, general skin problems were denied by the Veteran. Post-service treatment records show that in September 1996, a VA primary care record noted no rashes were present. In October 2004, an initial appointment with primary care at the Air Force Base (AFB) showed Veteran reported having a rash but the location of the rash was not stated. "No facial pain" was noted in conjunction with evaluation for seasonal allergic rhinitis. A September 2006 AFB note showed under physical findings that skin was normal. In October, an orthopedic surgery note at a private institution noted the Veteran had an allergy to Demerol which caused a rash. Physical examination revealed no rashes or lesions at that time. The Veteran is competent to state that he had a facial rash in service and to state that he has had a facial rash since that time. 38 C.F.R. § 3.159(a)(2). But, as explained, the Veteran has not described a facial rash occurring since service; he has never stated he has had a facial rash since service. There is no evidence that he has symptoms or a diagnosis of a facial rash. The evidence shows, as explained above, the Veteran was given multiple opportunities to report that he had a facial rash in and after service and he did not do so. He did not report a facial rash or history of skin problems in March 1994 before separation when he had the opportunity and explicitly denied having them at that time. The nature and location of such a disability would make it obvious but it has not been noted in records. The Veteran has not reported a facial rash at any time since service and has not explicitly contended that he has had a facial rash at any time during the current appeal period. Caluza, 7 Vet. App. 498. Continuity of symptomatology is not established. While the Veteran has provided competent and credible evidence of an episode of facial rash in service; there is no other evidence of symptoms, complaints or diagnoses of a facial rash currently, much less of a link between a current facial rash and service. The Board does not find in-service incurrence or aggravation of a disease or injury; or a nexus under Shedden. See 381 F.3d at 1167. The Veteran does not assert, nor does the evidence show, that he was in combat; the presumption is not applicable for this claim or any other claim adjudicated in this decision. See 38 U.S.C.A. § 1154(b) (West 2002). Absent evidence of a current disability with a link to service; reasonable doubt does not arise, and the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service connection for a left heel spur The Veteran contended in his July 2005 claim that he had a left heel spur that started in 1993 at Ft. Bliss. He was treated at the Troop clinic. He said he had to do mandatory running in service, mostly in boots. He also jumped on and off military vehicles. Available in-service treatment records do not report the existence of a left heel spur. A September 1996 VA primary care record showed no pain in the hands or feet. A VA primary care record dated in December 1996, shows the Veteran had a left foot heel spur which "got better" while other orthopedic problems had worsened. In December 2010, the Veteran was given a VA orthopedic examination. He was not able to stand on his heels. When asked about his left heel, the Veteran stated he had experienced a partial tear of the Achilles tendon, diagnosed in 1995, after he left the military. He had been treated by a private physician with a cast and improved. There was no record in the claims file of such treatment, but he had no symptoms at this time. The Veteran asserted he developed heel pain on the left side in 1992. Both ankles appeared to be similar upon physical examination and were negative for abnormalities; as a result, no X-rays were taken. The Veteran reported that he had no symptoms currently and the examiner found no current symptoms. The examiner did report a diagnosis of Achilles tendonitis. The examiner gave a negative opinion but acknowledged that Achilles tendonitis developed and was treated after service. The Veteran has provided competent evidence of injury during active service and the record shows that he was treated for pertinent disability within a year or two of active service. 38 C.F.R. § 3.159(a)(2). The Board finds the Veteran's statements to be probative and credible, especially because his admitted lack of symptoms goes against his claim. Caluza, 7 Vet. App. 498. The record; however, includes not evidence of a current disability. To be present as a current disability, there must be evidence of the condition at some time during the appeals period. Gilpin v. West, 155 F. 3d 1353, 1356 (Fed. Cir. 1998); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the appeal period). The Veteran's last reported treatment for heel spurs occurred approximately nine years before the current claim, he has not reported, and the record does not otherwise show, manifestations or symptoms of heel spurs at any time since treatment stopped. Notwithstanding the reported diagnosis, there was no reported evidence of a current disability on the December 2010 VA examination. Absent evidence of a current disability, the weight of the evidence is against the claim. Reasonable doubt does not arise, and the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Initial Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R., Part 4 (2012). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1 (2012). Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2 (2012). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2012). 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. Findings sufficiently characteristic to identify the disease, disability, and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2012). The Court has also held that in the case of an initial rating following a grant of service connection; separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). The analysis in the following decision is undertaken with consideration of the possibility that different or staged ratings may be warranted for different time periods. The Veteran was granted service connection for spontaneous pneumothorax in September 2007 at 10 percent disabling, effective July 25, 2005, when his claim was recognized as having been received. The Veteran's respiratory disability is currently rated under 38 C.F.R. § 4.97; Diagnostic Code 6842 (2012); but as discussed below, the Board is rating the disability under Diagnostic Code 6843. Both diagnostic codes are rated under the general formula for restrictive lung disease. Under that formula, a 10 percent rating is assigned when Forced Expiratory Volume in one second (FEV-1) is between 71 and 80 percent of what was predicted, where FEV-1/FVC (FVC stands for forced vital capacity) is between 71 and 80 percent of what was predicted, or where DLCO (SB) (diffusion capacity of the lung for carbon monoxide by single breath method) is between 66 and 80 percent of what was predicted. A 30 percent rating is assigned where there is FEV-1 between 56 and 70 percent predicted, where FEV-1/FVC is between 56 and 70 percent of predicted, or where DLCO (SB) is between 56 and 65 percent of what was predicted. The criteria for rating pulmonary disabilities were amended effective October 6, 2006, but only apply to claims received on or after that date. 71 Fed. Reg. 52457, 52458 (codified at 38 C.F.R. § 4.96 (2012)). Because the Veteran's claim was pending prior to that date, the amendments are not applicable. The Veteran's disability was initially rated as left spontaneous pneumothorax was assigned under the DC 6842, kyphoscoliosis, pectus excavatum, and pectus carinatum. This code is rated under the same formula as DC 6842, which covers pneumothorax. However, since pneumothorax is specifically mentioned in DC 6843, the Board finds this is the proper DC for the Veteran's disability. At a June 2005 VA primary care appointment, the Veteran reported the collapse of his left lung at age 30. He had pain on movement since then and complained: "It locks up." This happened for a long time secondary to his old lung injury. He was retired and used to work as an operational manager for industrial transportation. On examination, lungs were clear to auscultation with no wheezing. An October 2006 orthopedic surgery note also showed his past medical history was significant a collapsed lung of unknown etiology. The Veteran was given two VA examinations to evaluate his left spontaneous pneumothorax. In July 2007, he had a VA examination with PFTs. The claims file and medical evidence was reviewed. The Veteran reported working full time. The Veteran reported no recurrence of any symptoms of a past hernia. There was also no recurrence of the collapsed lung. No recurrent pulmonary infections, pneumonia, or chronic obstructive pulmonary disease. He did not smoke. He had no cardiopulmonary problems. In November 2006, he underwent a left hip replacement without any respiratory complications. He did get shortness of breath climbing stairs sometimes. He complained of some pain when he bent forward, but it was asymptomatic when he straightened up. His breathing was excellent. An X-ray showed a normal chest. The Veteran reported it hurt to breathe deeply. PFTs showed FEV1/FVC was 94 percent predicted; after the bronchodilator it was 77 percent. The DLCO-SB was 49.4. It was noted that the Veteran had made limited effort and full evaluation could not be accomplished. The examiner found essentially normal spirometry was shown. Diffusion capacity of carbon monoxide decreased. The diagnosis was pneumothorax on the left treated in 1976 with tube thoracostomy without recurrence. The Veteran did have some ill-defined discomfort in the right subcostal area just medial to the left upper quadrant, which was a considerable distance from his thoracostomy site anatomically. The etiology for the discomfort was unknown, but it was strictly posturally related. Apart from when he bent forward at the waist about halfway it was never present and disappeared promptly when he was in the upright position. A herniorrhaphy without recurrence was also noted. The examiner's findings indicate that the PFTs on the 2007 evaluation were not reliable. Hence they do not provide reliable evidence for rating the Veteran's disability. In May 2009, the Veteran received a new VA examination. He complained of some pain with deep breathing since treatment for pneumothorax in 1976. But the problem was never severe enough to discuss with the primary care doctor. He presently received no treatment for the problem. He reported night sweats but not daytime somnolence. The physical examination was essentially normal and the diagnosis was spontaneous pneumothorax in the remote past, resolved. An X-ray was also normal. PFTs showed FEV1/FVC of 77 percent and after the bronchodilator, 79 percent. FEV1 was 71.7 percent of predicted; and DLCO-SB was 68 percent. The examiner noted: "Variable effort limits interpretation." But, the examiner also stated that from the best data obtained, pulmonary function was no worse than a mild obstruction. There was a significant bronchodilator effect compared to the prior 2007 study. The Veteran did complain of a sharp pain the left lung area when inhaling that cuts off his air. Given the results and the Veteran's competent complaints, the Board finds that no initial increased rating is warranted at this point. The May 2009 VA examination with PFT results supports the 10 percent rating. Unlike the prior examination, these results are also consistent with each other (See the general rating formula for restrictive lung disease). A higher rating of 30 percent has not been shown by the record because the reliable test results have not shown to meet the FEV1/FVC or DLCO (SB) predicted amounts that would warrant such a rating. See 38 C.F.R. § 4.97, DC 6843. Additionally, the evidence shows the Veteran has had no recurrent episodes of spontaneous pneumothorax. 38 C.F.R. § 4.97, Note (2). The Board finds the weight of the evidence is against a higher initial rating for spontaneous pneumothorax at any time during the appeal period. The Board has also considered whether an extraschedular rating is warranted. If an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1) (2012). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). 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. This means that initially there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made whether the claimant'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) (related factors include marked interference with employment and frequent periods of hospitalization). In this case, the Veteran has reported occasional pain. This is not a symptom that is explicitly considered in the rating criteria, but there are no other related factors such as frequent hospitalization or marked interference with employment. The record reflects that the Veteran was most recently reported to be working full time and there have been no reports that the pulmonary disability has caused any interference with this employment. In October 2010, he reported that he had lost no time from work, except for a period after undergoing hip surgery. As such, it cannot not be found that there are exceptional factors warranting referral for consideration of an extraschedular rating. Rice The Court has held that TDIU is an element of all appeals of an initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2012). The Veteran indicated in his July 2005 claim that he had been working as a substitute teacher and in lawn maintenance, but had been unemployed since May 2005 due to a combination of hip, knee and lung disabilities. In May 2006, the Veteran reported that he was currently employed by the United Way as Director of Operations; a similar history was reported on outpatient treatment in October 2006. On the 2007 VA examination it was reported that this employment was full time and in October 2010, it was indicated that he remained employed. The record shows that the Veteran has been employed except for a short period in 2005 after the end of the school year. It does not include evidence of unemployability since July 2005. Hence further consideration of entitlement to TDIU is not warranted at this time. As the criteria for an initial rating in excess of 10 percent for the left spontaneous pneumothorax have not been shown on either a schedular or extraschedular basis, the Veteran's claim is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a facial skin disorder is denied. Service connection for a left heel spur is denied. An initial evaluation in excess of 10 percent for residuals of a left spontaneous pneumothorax is denied. REMAND The Veteran underwent a VA examination for his hip disabilities in December 2010. The examiner stated that relating the development of osteoarthritis in the hips was "speculative at best" because there were no service treatment records to indicate that the Veteran was seen for hip pain and there was no reference in his history that he ever sustained a specific injury to the hips. "Therefore, in addition to being somewhat speculative, as best this examiner can state it is less likely than not that the Veteran's hip osteoarthritis is related to the military." The Veteran was competent; however to report that he had hip pain in service, and he has consistently done so. He has reported that pain began to increase in 1990 and continued until he had hip replacements in 2007 and 2008. Further, the examiner did not discuss a March 1994 pre-operation assessment and intraoperative nursing plan (for hernia surgery) showed that arthritis was circled. Also, at his October 2004 initial primary care appointment at the AFB, the Veteran complained he had bilateral hip pain, left worse than right, for years. The examiner's opinion is not adequate, because he did not consider the Veteran's competent reports, but relied on the absence of supporting treatment records, and did not consider clinical evidence of a disability in service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the December 2010 VA examiner or, if he is not available, send the file to a new examiner for an opinion. This remand and the claims file (including relevant records stored in an electronic format) should be provided to the examiner. The examiner should reference the Veteran's statement that he had bilateral hip pain in service that worsened in 1990; the March 1994 pre-operation assessment and intraoperative nursing plan for hernia surgery showing he reported arthritis; and an October 2004 initial primary care appointment at the AFB where the Veteran complained of having had bilateral hip pain for years. The examiner should state whether it is at least as likely as not that the bilateral hip osteoarthritis was incurred in service or is otherwise the result of a disease or injury in service. The examiner should give the reasons for the opinion that takes into account the Veteran's reports. His reports cannot be rejected merely because of the absence of supporting clinical records. If the examiner finds that a diagnosis or opinion cannot be reached without resorting to speculation, the examiner should explain what facts are needed and why they are needed to come to a conclusion. 2. If any determination remains adverse to the Veteran, issue a supplemental statement of the case. Then return the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs