Citation Nr: 1306255 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 98-14 600 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to a rating in excess of 40 percent for a low back disability. 2. Entitlement to service connection for a disability manifested by abdominal pain, to include as due to an undiagnosed illness. 3. Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran had active service from October 1982 until June 1986, and from January 1988 until January 1992. This matter comes before the Board of Veterans' Appeals (BVA or Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In a rating decision of March 2000, the RO assigned the Veteran a 40 percent disability rating for the back; this decision was confirmed by a September 2002 rating decision in which the RO also denied the Veteran's claim of entitlement to service connection for hepatitis C. The Veteran initiated an appeal of these issues, and in March 2003 and December 2006 the Board remanded these matters for additional development. The Board notes that the remaining claims in this remand, namely five service connection issues and a claim for a total disability rating based upon individual unemployability, were granted in a July 2007 rating decision. The Board notes that as part of the December 2006 remand orders, the RO was to contact the Veteran and arrange for a hearing before a Veterans Law Judge. In November 2008, the Veteran was notified of a scheduled hearing; however he failed to attend such hearing. The hearing request is thus deemed withdrawn. 38 C.F.R. § 20.704(d). The Board remanded these issues for additional development in September 2011. In a November 2012 Written Brief Presentation, the Veteran's representative claimed that the Veteran is entitled to special monthly compensation based upon him being unemployable as a result of his service-connected back disability. This matter is referred back to the RO for appropriate action. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. The issues of entitlement to service connection for hepatitis C, entitlement to service connection for a disability manifested by abdominal pain, to include as due to an undiagnosed illness and entitlement to SMC 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. FINDING OF FACT The Veteran's low back disability has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine, incapacitating episodes requiring bed rest prescribed by a physician and treatment by a physician, or neurological impairment relating to bowel or bladder. CONCLUSION OF LAW The criteria for an evaluation in excess of 40 percent for a low back disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5235-5242, 5243 (2012); 38 C.F.R. § 4.71, Diagnostic Codes 5292, 5293 (2002). REASONS AND BASES FOR FINDING AND CONCLUSION VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Notice should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a notice letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in January 2006. An April 2008 letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). After issuance of the January 2006 and April 2008 letters, and opportunity for the Veteran to respond, the June 2012 supplemental statement of the case (SSOC) reflects readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of the latter notice. See Mayfield, 20 Vet. App. at 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SSOC, is sufficient to cure a timing defect). VA has also fulfilled its duty to assist in obtaining the identified and available evidence needed to substantiate the claim adjudicated in this decision. The RO has either obtained, or made sufficient efforts to obtain, records corresponding to all treatment for the claimed disorder described by the Veteran. Additionally, he was afforded VA examinations in August 1999, January 2002, November 2005, February 2006 and April 2007. Per the September 2011 remand instructions, the Veteran also underwent a VA examination in October 2011 that was fully adequate for the purposes of rendering this decision. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Increased Ratings Laws and Regulations Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will 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 and the disability there from, and above all, coordination of rating with impairment of function will, however, are expected in all instances. 38 C.F.R. § 4.21 (2012). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). The United States Court of Appeals for Veterans Claims (Court) has also held that in a claim of disagreement with the initial rating assigned following a grant of service connection separate ratings can be assigned for separate periods of time, based on the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2 The Board further acknowledges that 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. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). VA must consider "functional loss" of a musculoskeletal disability separately from consideration under the diagnostic codes; "functional loss" may occur as a result of weakness or pain on motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). VA must consider any part of the musculoskeletal system that becomes painful on use to be "seriously disabled." 38 C.F.R. § 4.40. The Veteran was granted service connection for a lumbosacral strain disability at a 20 percent evaluation under Diagnostic Code 5292. In a March 2000 rating decision, the RO assigned the Veteran a 40 percent disability rating for the back. Initially, the Board notes that the Rating Schedule has been revised with respect to evaluating disabilities of the spine. See Schedule for Rating Disabilities; Intervertebral Disc Syndrome, 67 Fed. Reg. 54,345-49 (Aug. 22, 2002) (codified at 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003)). Those provisions, which became effective September 23, 2002, replaced the rating criteria of 38 C.F.R. § 4.71a, Diagnostic Code 5293 for intervertebral disc syndrome (in effect through September 22, 2002). The Board observes that the regulations were further revised, effective from September 26, 2003. See Schedule for Rating Disabilities; The Spine, 68 Fed. Reg. 51,454-56 (Aug. 27, 2003). Disabilities and injuries of the spine are now evaluated under 38 C.F.R. § 4.71a, Diagnostic Codes 5235 through 5243. If application of the revised regulation results in a higher rating, the effective date for the higher disability rating can be no earlier than the effective date of the change in the regulation. 38 U.S.C.A. § 5110(g) (West 2002). Prior to the effective date of the change in the regulation, the Board can apply only the original version of the regulation. Under 38 C.F.R. § 4.71a, and prior to September 26, 2003, Diagnostic Code 5292, which pertained to limitation of motion of the lumbar spine, a 40 percent evaluation is warranted for severe limitation of motion. A 20 percent rating is assigned for moderate limitation of motion. Slight limitation of motion warrants a 10 percent evaluation. Under 38 C.F.R. § 4.71a, and prior to September 26, 2003, Diagnostic Code 5293, a 20 percent evaluation required moderate intervertebral disc syndrome, with recurring attacks, a 40 percent evaluation required severe intervertebral disc syndrome, with recurring attacks, with intermittent relief. A 60 percent evaluation required pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy (i.e., with characteristic pain and demonstrable muscle spasm and an absent ankle jerk or other neurological findings appropriate to the site of the diseased disc) and little intermittent relief. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (prior to Sept. 23, 2002). Under 38 C.F.R. § 4.71a, and prior to September 26, 2003, Diagnostic Code 5295 provides that a 20 percent evaluation is warranted for lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in the standing position. A 40 percent rating may be assigned when there is severe lumbosacral strain with a listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes or narrowing with irregularity of joint space, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2002) (effective prior to September 26, 2003). Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Where the limitation of motion of the specific joint or joints involved is noncompensable, under the applicable diagnostic codes, a maximum rating of 10 percent is warranted where arthritis is shown by x-ray and where limitation of motion is objectively confirmed by evidence of swelling, muscle spasm, or painful motion. In the absence of limitation of motion, but with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, a 20 percent rating is warranted. A 10 percent rating is warranted when there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The regulations regarding diseases and injuries to the spine, to include intervertebral disc syndrome, were revised effective September 26, 2003. Under these revised regulations, the back disability is evaluated under the formula for rating intervertebral disc syndrome based on incapacitating episodes, diseases and injuries to the spine are to be evaluated under diagnostic codes 5235 to 5243. A 100 percent evaluation is warranted for intervertebral disc syndrome with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease or for unfavorable ankylosis of the entire spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent evaluation is warranted for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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. Note (1) provides that VA should evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2) states that for VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (5) provides that for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6) directs to 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. Factual Background and Analysis The Veteran underwent a VA examination in August 1999. Forward flexion was 0 to 80 degrees and extension was 0 to 5 degrees with discomfort. He also had discomfort with side to side bend of 0 to 15 degrees and rotation of 0 to 30 degrees. He had subjective decreased sensation at the left at L5 with a negative straight leg raise. Motor strength to all of his major muscle groups was 5/5 of the lower extremity but he was unable to squat due to knee pain. X-rays revealed an unusual bony prominence at the right L4 transverse process with overlying lucency that could possibly be bowel gas. It appeared to be an old benign lesion. The diagnosis was mechanical low back pain with an abnormal growth at the right fourth transverse process. On an August 1999 VA sensory examination, the Veteran presented with complaints of decreased sensation throughout. The examiner opined that the Veteran's intermittent numbness in his upper and lower extremities could not be reasonably explained on the basis of a neurological condition as it was more likely based upon chronic intermittent anxiety and hyperventilation. The Veteran underwent a VA general medical examination in January 2002. On examination, he had limited range of motion of both upper extremities from 0 to 90 degrees of abduction and forward flexion. Otherwise, his muscle strength in the upper and lower extremities was tested to be normal. There was no sign of muscular atrophy. The diagnosis was mechanical low back pain. The Veteran underwent a VA examination in November 2005. The Veteran reported that he had 3 benign tumors removed from his back and had also been diagnosed with Gulf War Syndrome. He reported experiencing significant discomfort and radiculopathy from multiple disc bulges in his spine. He stated that his back pain went up and down his spine and radiated throughout but that he had never lost bowel or bladder dysfunction. His flare-ups consisted of pain, not weakness, lack of endurance or coordination. He reported not being incapacitated but noted that he was unemployed because of his back. Forward flexion was from 0 to 30 degrees. Extension was 0 degrees. Side to side bending and rotation was 0 degrees. His range of motion was limited by pain but not weakness, fatigability, lack of endurance or incoordination. Strength of the hamstrings, quadriceps, flexors and gastrocnemius, tibialis anterior and extensor hallicus long was 5/5. Sensation in the lower extremities was grossly normal. He had 1+ patellar reflex bilaterally. At this time, range of motion was not decreased secondary to pain, weakness, fatigability, lack of endurance on repetitive motion or incoordination. With flare-ups, his functional ability was decreased secondary to pain. Strength was 5/5 in the handgrip and sensation was normal in the fingers. The diagnosis was back pain likely secondary to myofascial pain syndrome. There was no radiographic evidence of any intraspinal pathology. The Veteran underwent a VA (QTC) examination in February 2006. The examiner noted that the Veteran had been diagnosed with degeneration of the L3-L4 discs. He suffered from stiffness and difficulty bending the spine. His pain was constant and it travelled to both legs. He noted that the pain did not produce incapacitation. The functional impairment was difficulty bending and did not result in any lost time from work. Inspection of the spine revealed normal head position with symmetry in appearance. There was symmetry of spinal motion with normal curvatures of the spine. Examination revealed no complaints of radiating pain on movement. Muscle spasm was absent. There was tenderness noted on the examination over the lumbar spinal processes, spinal muscles and sacroiliac joints. There was positive straight leg raising on the right and left. There was no ankylosis of the spine. Flexion was 0 to 30 degrees. Extension was 0 to 5 degrees. Right and left lateral flexion was 0 to 10 degrees and right and left lateral rotation were 0 to 15 degrees. The joint function of the spine was additionally limited by pain after repetitive use. It was not additionally limited by fatigue, weakness, lack of endurance or incoordination after repetitive use. The examiner was unable to make a determination without resorting to mere speculation on whether pain, fatigue, weakness, lack of endurance or incoordination additionally limited the joint function in degrees. There were no signs of intevertebral disc syndrome with chronic and permanent nerve root involvement. Neurological examination revealed normal motor function in the lower extremities but abnormal sensory findings of decreased sensation over L5-S1 dermatomes of the left leg and foot. Right lower extremity reflexes revealed knee jerk 2+ and ankle jerk 2+. The left lower extremity reflexes revealed knee jerk 2+ and ankle jerk 1+. The examiner noted that the previous diagnosis of severe limited motion of the lumbar spine was changed to early degenerative disc disease. A March 2007 MRI of the lumbar spine revealed multilevel degenerative disc disease and facet osteoarthritis. The Veteran underwent a VA neurological examination in April 2007. The examiner noted that the Veteran had been diagnosed with fibromyalgia. On sensory examination, no consistent abnormalities were detected. Coordination was intact and his motor examination was symmetrical in bulk and tone. The examiner determined that no background neurological condition was defined except for the possibility of tension type headaches. The diagnosis was musculoskeletal pain of various types with no neurological foundation defined at any level. Per the September 2011 Board remand instructions, the Veteran underwent a VA examination in October 2011. The examiner noted that the Veteran had a diagnosis of degenerative arthritis of the lower back. The Veteran reported that flare-ups impacted his back due to pain and stiffness. On examination, forward flexion was 0 to 80 degrees with painful motion beginning at 70 degrees. Extension was 0 to 20 degrees with painful motion beginning at 20 degrees. Right lateral flexion, left lateral flexion, right lateral rotation and left lateral rotation were all 0 to 30 degrees or greater and there was no objective evidence of painful motion. The Veteran was able to perform repetitive-use testing with 3 repetitions. The range of motions were the same after 3 repetitions. He did not have additional limitation in range of motion following repetitive use testing. He did have functional loss and/or functional impairment of the thoracolumbar spine as he had less movement than normal and pain on movement. He also had tenderness at the L5 mid region. He had guarding and muscle spasm of the thoracolumbar spine but it did not result in abnormal gait or spinal contour. Muscle strength testing was normal in all areas and the Veteran did not have muscle atrophy. His right and left knees and ankle reflexes were normal. His sensory examination was normal. A left straight leg testing was negative while the right straight leg testing was positive. He had mild intermittent pain of the right lower extremity. He had no other signs or symptoms of radiculopathy. There was nerve root involvement of the right side sciatic nerve that was mild. There was no left side nerve root involvement. The Veteran had no other neurological abnormalities or findings related to a thoracolumbar spine condition (such as bowel or bladder problems/pathologic reflexes). He did have intervertebral disc syndrome of the thoracolumbar spine but this resulted in no incapacitating episodes over the past 12 months. It was noted that the Veteran occasionally used a cane. There were no other pertinent physical findings, complications, conditions, signs or symptoms. Arthritis was demonstrated but the Veteran did not have a vertebral fracture. The Veteran's back impacted his ability to work as he had problems bending, stooping, lifting and carrying. The claim for an increase in the rating assigned for the service-connected back disability was received in January 1999. Under the version of the code that existed prior to September 23, 2002, the Board finds that the Veteran is not entitled to a disability rating higher than 40 percent as the Veteran's low back disability was not manifested by any symptoms that could be characterized as "pronounced." In addition, the Board notes that an evaluation of 40 percent disabling represents the maximum evaluation available under Diagnostic Codes 5292. Finally, this case does not involve a vertebral fracture (Diagnostic Code 5285). As such, entitlement to an evaluation in excess of 40 percent disabling for a low back disability is not warranted prior to September 26, 2003. The Veteran is also not entitled to a disability rating higher than 40 percent under the revised version of the rating criteria as of September 26, 2003 in view of the fact that ankylosis is not present. In that regard, the evidence simply does not show any ankylosis of the lumbar spine. In fact, the aforementioned range of motion findings does not demonstrate that the joint was immobile or fixed in place. The Board notes that ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)); Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (ankylosis is "stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint," citing Stedman's Medical Dictionary 87 (25th ed. 1990). As the Veteran has not been noted to have ankylosis of the spine at any time, the Board finds that a rating in excess of 40 percent is not warranted. The Board also notes that since there is no evidence that the Veteran has been incapacitated by his lumbar spine with bed rest prescribed by a physician, entitlement to an evaluation under Diagnostic Code 5293 (in effect from September 23, 2002 through September 25, 2003) or Diagnostic Code 5243 (effective September 26, 2003) based upon incapacitating episodes is not warranted. The October 2011 VA examiner specifically noted that there were no incapacitating episodes for the thoracolumbar spine. Additionally, the Veteran's lumbar spine has manifested associated neurological symptoms as the October 2011 VA examination revealed mild intermittent pain of the right lower extremity. However, the Board notes that the Veteran has been awarded a separate compensable 10 percent evaluation for right lower extremity radiculopathy in the August 2012 rating decision. The Board notes that the Veteran did not express disagreement with this evaluation, and his representative has not otherwise suggested that the matter is on appeal; therefore, it is not addressed in this decision. The October 2011 examination revealed no corresponding findings of the left lower extremity, and the evidence does not otherwise suggest a chronic left lower extremity disability for which a separate evaluation may be warranted. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an increased evaluation for the Veteran's service-connected lumbar spine disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned 40 percent rating, and no higher. In this regard, the Board notes that while the October 2011 VA examiner reported that there was objective evidence of pain on active range of motion, he indicated that there were no additional limitations after three repetitions of range of motion. Therefore, the Board finds that the preponderance of the evidence is against an increased evaluation in excess of 40 percent for the Veteran's lumbar spine disability. 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration The Board must still consider whether the Veteran is entitled to an extra-schedular rating under the provisions of 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of 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, therefore, adequate, and no referral is required. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the Board finds that the disability picture presented by the Veteran's low back disability is appropriately contemplated by the rating schedule. Specifically, the Veteran has pain associated with range of motion, with occasional flare-ups that impacted his ability to work as he had problems bending, stooping, lifting and carrying. Those symptoms are fully contemplated by the schedular criteria. The Board notes that entitlement to a total disability rating has separately been established. Therefore, referral for consideration of an extraschedular evaluation is not warranted here. ORDER Entitlement to a rating in excess of 40 percent for a low back disability is denied. REMAND Regarding the Veteran's claim for disability manifested by abdominal pain, as noted in the Introduction, in the September 2011 decision, the Board remanded the issues of service connection for a disability manifested by bilateral knee weakness and a disability manifested by abdominal pain, to include as due to an undiagnosed illness. The Board found that new VA examinations were needed to obtain a more detailed VA examination given the complexity of ascertaining disability under 38 U.S.C.A. § 1117. Per the September 2011 remand instructions, the Veteran underwent a VA examination for his bilateral knee disability in November 2011. As a result of the November 2011 positive VA opinion, the RO granted service connection for left knee arthritis and right knee arthritis in an August 2012 rating decision. While the Veteran underwent an examination for his bilateral knees, he did not undergo an examination to address his disability manifested by abdominal pain, to include as due to an undiagnosed illness. The Board is obligated by law to ensure that the RO complies with its directives, as well as those of the Court. The Court has stated that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Thus, the issue of service connection for a disability manifested by abdominal pain, to include as due to an undiagnosed illness needs to be remanded in order to comply with the September 2011 remand directives. Regarding the issue of entitlement to service connection for hepatitis C, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The threshold for finding a link between current disability and disease or injury in service is low. McLendon v. Nicholson, 20 Vet. App. 79 (2006). If the medical evidence of record is insufficient, or, in the opinion of the Board, of doubtful weight or credibility, the Board is always free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. However, it is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board notes that the Veteran contends that he contracted hepatitis C as a result of his service in the Persian Gulf to include the inoculations he received in service. The medical evidence demonstrates that the Veteran was first diagnosed with hepatitis C in 1995. The Veteran underwent a VA general examination in January 2002. The examiner noted that the Veteran's hepatitis C began in 1995. However, no etiology was given. More recently, in an August 2008 VA treatment note, the treating physician noted a medical history of hepatitis C from pneumatic injections. Notably, while the Veteran a history methamphetamine use, he denied heroin or intravenous drug use. Given the facts noted above, the Board finds that the evidence currently of record is insufficient to resolve the claim for service connection for residuals of a hepatitis C disability and that further medical examination and opinions in connection with this claim is warranted. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a VA medical examination, with an appropriate examiner who has reviewed the claims file, to ascertain the nature and etiology of the claimed abdominal pain disability and hepatitis C. The examiner must address whether there is a known clinical diagnosis for the claimed abdominal pain disability. If so, the examiner must render that diagnosis and determine whether it is at least as likely as not (a 50 percent or greater probability) that such diagnosis is etiologically related to service. If not, the examiner must specify whether there is a chronic disease process or processes existing for six months or more as shown by "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. The severity of such diagnosis or diagnoses must be described. The examiner is reminded that the symptom history reported by the Veteran is particularly important in making this determination and must be given full consideration. The examiner must also address whether there is a known clinical diagnosis for residuals of hepatitis C disability. If so, the examiner must render that diagnosis and determine whether it is at least as likely as not (a 50 percent or greater probability) that such diagnosis is etiologically related to service, including as a result from air gun injections in service. All opinions must be supported by a complete rationale in a typewritten report. 2. Then readjudicate the Veteran's claims. If either determination remains unfavorable, the Veteran and his representative must be furnished with a Supplemental Statement of the Case and given an opportunity to respond before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on this matter. 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). ______________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs