Citation Nr: 1312386 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 07-20 645 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for status post femur fracture with right hip arthritic pain (right femur disability). 2. Entitlement to an initial rating in excess of 10 percent for right wrist tendonitis. 3. Entitlement to an initial rating in excess of 30 percent for peroneal nerve and posterior tibial nerve injury involving the right ankle and foot (right leg nerve disability). 4. Entitlement to an initial rating in excess of 30 percent for asthma. 5. Entitlement to an initial rating in excess of 10 percent for gastroesophageal reflux disease (GERD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty from July 1998 to November 1998 and from February 2003 to October 2004. The Veteran also had other periods of service with a reserve component. These matters come before the Board of Veterans' Appeals (Board) from March 2006 and September 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In October 2010, the Board remanded the appeal for additional development. In August 2010, the Veteran and his wife testified at a hearing before a Veterans' Law Judge who has since left the Board's employment. A transcript of that hearing is associated with the claims file. The Veteran has not replied to the Board's June 2012 offer for another hearing. Therefore, the Board finds that adjudication of the appeal may go forward without scheduling him for another hearing. In rating decisions dated in September 2009 and April 2012, the RO granted higher evaluations for the Veteran's service connected right femur disability, right leg nerve disability, asthma, and/or GERD effective the date of claim (October 3, 2004). However, because these higher evaluations are not the maximum benefit allowable by law or regulation, the Board finds that it retains jurisdiction over these claims. See AB v. Brown, 6 Vet. App. 35 (1993). In June 2012, the Veteran submitted statements concerning effective dates for various awards of benefits. These are referred to the RO for appropriate action. The claims for higher initial evaluations for asthma and GERD 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. From October 3, 2004, the Veteran's right femur/hip disability has not been shown to be productive of favorable hip ankylosis; hip flexion limited to 10 degrees; a flail joint; nonunion of the femur with or without loose motion and weight bearing preserved with aid of a brace; or a fracture of the surgical neck of the femur with false joint. 2. From October 3, 2004, the most competent and credible evidence of record shows that the Veteran right wrist tendonitis is manifested by pain with limitation of motion, but not ankylosis. 3. From October 3, 2004, the most competent and credible evidence of record does not show that the Veteran right leg nerve disability is manifested by complete paralysis of the external popliteal nerve (common peroneal nerve). CONCLUSIONS OF LAW 1. From October 3, 2004, the criteria for an initial rating in excess of 30 percent for a right femur disability have not been met. 38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5252-5255 (2012). 2. From October 3, 2004, the criteria for an initial rating in excess of 10 percent for right wrist tendonitis have not been met. 38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5215 (2012). 3. From October 3, 2004, the criteria for an initial rating in excess of 30 percent for a right leg nerve disability have not been met. 38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8521 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 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, 3.326(a) (2012). Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits. The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain. Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations. 38 U.S.C.A. § 5103A. In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. See 38 U.S.C. § 5103(a). The Board notes that the Veteran is challenging the initial evaluations assigned following the grant of service connection for the disabilities addressed in this final decision. In Dingess, supra, the Court also held that in cases where service connection has been granted and initial disability evaluation has been assigned, the service connection claim has been more than substantiated, it has been proven, thereby rendering § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id, at 490-91; see also Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the August 2010 Board personal hearing, the VLJ noted the elements of the claims that were lacking to substantiate the claim for higher evaluations. The Veteran was assisted at the hearing by his accredited representative and his representative and the VLJ asked questions to draw out the current severity of the appellant's right femur disability, right wrist tendonitis, and a right leg nerve disability. No pertinent evidence that might have been overlooked and that might substantiate the claims was identified by the Veteran or the representative that was not obtained while the appeal was in remand status. The hearing focused on the elements necessary to substantiate the claims, and the Veteran through his testimony, demonstrated that they had actual knowledge of the elements necessary to substantiate the claims. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). As to the duty to assist, the Board finds that VA has secured all available and identified pertinent in-service and post-service evidence including the Veteran's service treatment records as well as his post-service records from the Spokane and Puget Sound VA Medical Centers and Wenatchee Valley in substantial compliance with the October 2010 Board remand instructions. See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). The Veteran was also provided with VA examinations in November 2005, December 2009, and December 2010 that the Board finds are adequate for rating purposes because after a comprehensive examination of the claimant as well as after a review of the record on appeal the examiners provided opinions as to the severity of his disabilities that allow the Board to rate them under all relevant Diagnostic Codes. See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007). As to the December 2010 examination, the Board also find that it substantially complied with the October 2010 Board remand directions even though the examination was conducted by a nurse practitioner (NP) and she did not state that that the range of motion studies she reported were taken using a goniometer because the Board finds that she had the required medical expertise to provide the requested opinions and the Board finds it reasonable to conclude that the range of motion studies were performed using the appropriate medical tool even though which tool was used was not reported in the examination report. See Stegall, supra; Dyment, supra. In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). In adjudicating the claims below, the Board has reviewed all of the evidence in the Veteran's claims file including those found in virtual VA. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran 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 claims and what the evidence in the claims files shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Claims The Veteran and his representative assert that his right femur disability, right wrist tendonitis, and a right leg nerve disability are worse than rated and warrant higher evaluations. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Court has held 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical location and symptomatology are closely analogous. 38 C.F.R. § 4.20. When evaluating loss in range of motion, consideration is given to the degree of functional loss caused by pain. DeLuca v. Brown, 8 Vet. App. 202 (1995) (evaluation of musculoskeletal disorders rated on the basis of limitation of motion requires consideration of functional losses due to pain). In DeLuca, the Court explained that, when the pertinent diagnostic criteria provide for a rating on the basis of loss of range of motion, determinations regarding functional losses are to be "'portray[ed]' (38 C.F.R. § 4.40) in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Id, at 206. Under 38 C.F.R. § 4.40, disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and functional loss with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. Additionally, 38 C.F.R. § 4.45 provides, as regards to the joints, that the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) Less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.). (b) More movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.). (c) Weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.). (d) Excess fatigability. (e) Incoordination, impaired ability to execute skilled movements smoothly. (f) Pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. Likewise, 38 C.F.R. § 4.59 provides that with any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. In Burton v. Shinseki, the Court held that 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. Burton v. Shinseki, 25 Vet. App. 1 (2011). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). a. The Right Femur Disability A March 2006 rating decision granted service connection for the right femur disability and rated it 10 percent disabling effective from the October 2004 date of claim. The evaluation was subsequently increased to 30 percent, effective from October 2004, in an April 2012 rating action. Accordingly, the Veteran is potentially entitled to a rating in excess of 30 percent for his right femur disability if, inter alia, he has favorable/unfavorable hip ankylosis (Diagnostic Code 5250); thigh limitation of flexion to 10 degrees (Diagnostic Code 5252); a flail joint (Diagnostic Code 5254); or impairment of the femur with nonunion, without loose motion, and weight bearing preserved with aid of brace, fracture of surgical neck with false joint, or fracture of shaft or anatomical neck with nonunion and loose motion [spiral or oblique fracture] (Diagnostic Code 5255). See 38 C.F.R. § 4.71a (2012). Initially, the Board finds that a higher evaluation is not warranted under Diagnostic Code 5250 because the claims files do not contain a diagnosis of ankylosis of the hip. (Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992).) In fact, the November 2005 and the December 2010 VA examiners specifically opined that there was no ankylosis. Moreover, while treatment records document the Veteran's complaints and treatment for right femur problems, nothing in these records contradicts the VA examiners opinions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). In the absence of ankylosis, the Board may not rate his service-connected right femur disability as ankylosis. Johnston v. Brown, 10 Vet. App. 80 (1997). Consequently, the Board finds that a higher evaluation is not warranted for the Veteran's service-connected right femur disability under Diagnostic Code 5250. This is true at all times from October 3, 2004, and therefore the Board need not consider staged ratings. Fenderson, supra. As to Diagnostic Codes 5252, at the November 2005 VA examination flexion of the right hip was 0 to 125 degrees with tenderness, pain, and weakness but no heat, redness, swelling, effusion, drainage, instability, or crepitus. Moreover, while the examiner also opined that the Veteran had an addition 25 degrees of lost motion because he cannot take big steps, this would reduce flexion only to 100 degrees. In May 2007, flexion was 30 degrees. At the December 2009 VA examination, flexion of the right hip was 75 degrees after repetition and after taking into account his pain with tenderness and guarding but no edema, instability, abnormal movement, effusion, weakness, heat, redness, deformity, malalignment, drainage, or subluxation. At the December 2010 VA examination, flexion of the right hip was 0 to 100 degrees with no objective evidence of pain following repetitive motion or additional limitation of motion after repetition. While treatment records periodically document the Veteran's complaints and treatment for right femur/hip problems, nothing in these records contradicts the VA examiners opinions regarding lost range of motion. See Colvin, supra. Therefore, the Board finds that even taking into account the Veteran's complaints of pain as per the Court's holding in DeLuca, supra, and 38 C.F.R. §§ 4.40, 4.45, 4.59, flexion of the right hip is not the 10 degrees or less required for a higher evaluation because at its worst it was 30 degrees. Consequently, the Board finds that a higher evaluation is not warranted for the Veteran's service-connected right femur disability under Diagnostic Code 5252. This is true at all times from October 3, 2004, and therefore the Board need not consider staged ratings. Fenderson, supra. Likewise, the Board finds that a higher evaluation is not warranted under Diagnostic Codes 5254 or Diagnostic Code 5255 because the claims file does not show the Veteran ever being diagnosed with a flail joint; impairment of the femur with nonunion, without loose motion, and weight bearing preserved with aid of brace, fracture of surgical neck with false joint; or fracture of shaft or anatomical neck with nonunion and loose of motion [spiral or oblique fracture]. See, for example, VA examinations with X-rays dated in November 2005, December 2009, and December 2010; Wenatchee Valley computerized tomography (CT) dated in December 2006; Wenatchee Valley treatment record dated in December 2006. In fact, the November 2005 VA examiner specifically opined that X-rays of the right hip were normal except for retained hardware. Similarly, while the December 2009 VA examiner opined that the Veteran had a history of fracture of the anatomical neck he thereafter opined that X-rays showed an old healed fracture with no evidence of devise loosening. Likewise, the December 2010 VA examiner opined that there was no loss of a bone or part of a bone and that X-rays showed hardware with no evidence of hardware failure, fracture, malunion, nonunion, or loose motion. Moreover, while treatment records periodically document the Veteran's complaints and treatment for right femur problems, nothing in these records contradicts these VA examiners opinions. See Colvin, supra. Consequently, the Board finds that a higher evaluation is not warranted for the Veteran's service-connected right femur disability under Diagnostic Code 5254 or Diagnostic Code 5255. This is true at all times from October 3, 2004, and therefore the Board need not consider staged ratings. Fenderson, supra. b. The Right Wrist Tendonitis The March 2006 rating decision granted service connection for right wrist tendonitis and assigned it a 10 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5215 (limitation of motion) effective from October 3, 2004. Under 38 C.F.R. § 4.71a, Diagnostic Code 5215, the claimant is entitled to a maximum 10 percent evaluation for either wrist if palmar flexion is limited to a point in line with forearm or dorsiflexion is less than 15 degrees. Therefore, because the Veteran is already receiving the maximum rating possible under 38 C.F.R. § 4.71a, Diagnostic Code 5215, the Board finds that claim for a higher evaluation for his right wrist tendonitis under this rating criteria must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim on the ground of lack of legal merit). This is true at all times from October 3, 2004, and therefore the Board need not consider staged ratings. Fenderson, supra. As to rating the Veteran's right wrist tendonitis under 38 C.F.R. § 4.71a, Diagnostic Code 5214 (2012), the Board notes that the record, including the findings at the November 2005 and December 2010 VA examinations, is negative for a diagnosis of ankylosis. In fact, the November 2005 VA examiner specifically opined that there was no ankylosis. Moreover, while treatment records periodically document the Veteran's complaints and treatment for right wrist problems, nothing in these records, including the May 2007 treatment record contradicts the VA examiner's opinion. See Colvin, supra. In the absence of such a diagnosis, the Board will not rate the Veteran's service connected right wrist tendonitis as ankylosis. See 38 C.F.R. § 4.20; Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of diagnostic code should be upheld so long as it is supported by explanation and evidence); Johnston, supra. Consequently, the Board finds that a higher evaluation is not warranted for the Veteran's service-connected right wrist tendonitis under Diagnostic Code 5214. This is true at all times from October 3, 2004, and therefore the Board need not consider staged ratings. Fenderson, supra. c. The Right Leg Nerve Disability The March 2006 rating decision granted service connection for the right leg nerve disability and rated it 10 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8521. It was subsequently increased to a 30 percent evaluation in an April 2012 rating action, effective from October 2004. Initially, the Board notes that under 38 C.F.R. § 4.71a, Diagnostic Code 5284, 30 percent is the maximum rating for foot injuries, other than those enumerated by diagnostic codes 5276 through 5283, and which are not applicable here. Therefore, further consideration under this Diagnostic Code 5284, is not indicated. As to 38 C.F.R. § 4.124a, Diagnostic Code 8521, a higher 40 percent rating may be assigned for complete paralysis of the external popliteal nerve (common peroneal nerve). Symptoms of complete paralysis include foot drop and slight droop of first phalanges of all toes, cannot dorsiflex the foot, and extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost and adduction weakened; as well as anesthesia covers entire dorsum of foot and toes. Id. With the above criteria in mind, the Board notes that at the November 2005 VA examination the Veteran complained of right ankle aching, burning, and throbbing. On examination, his gait was normal, his feet did not show signs of abnormal weight-bearing, and he did not require any assistive device to walk. There was pain and weakness in the right ankle as well as painful motion and tenderness in the right foot. Neurological examination revealed normal sensation and normal and symmetric reflexes at 2+ in the lower extremities. The diagnosis was peripheral neuropathy with subjective complaints of right foot cold and pain and objective evidence of change of sensation in the left medial foot. In May 2007, neurological examination revealed 4/5 strength in the right lower extremity; 1+ deep tendon reflexes in the right knee and ankle; decrease sensation to light touch over the lateral calf and thigh and dysesthesia over the medial calf and foot; and his gait showed a marked right leg limp. However, strength testing in the lower extremities was otherwise 5/5; deep tendon reflexes in the lower extremities were otherwise 2+; and no tremors were noted. The diagnosis was peroneal nerve injury. Thereafter, at the December 2009 VA examination the Veteran complained of chronic right hip pain radiating into his right leg down to his foot with tingling and numbness as well as weakness and giving way. On neurological examination, coordination was within normal limits. The lower extremities had abnormal pin prick sensory function with diminished sensation and dysesthetic sensation along the lateral border of the right foreleg from the knee to the dorsum of the foot. Knee jerk was absent in the right knee and the right ankle had decreased reflexes at 1+. The diagnosis was sensory neuropathy. However, motor function was within normal limits. The examiner opined that the most likely nerves involved are the right peroneal and posterior tibial nerves. At the December 2010 VA examination, the Veteran complained of pain periodically shooting down his right leg to his foot with numbness on top of his foot and leg weakness. The Veteran also complained of having problems with his balance secondary to the right foot pain and numbness as well as having to drag his right foot. On examination, reflexes in the right knee and ankle were normal at 2+. Sensory examination was normal in the right lower extremity except for the toes only feeling a dull sensation. Motor examination was also normal at 5/5 in the right hip, knee, and toes with no muscle atrophy and normal muscle tone. The Veteran's gait was abnormal with a limp and dragging of the right foot. Electromyography (EMG) and a nerve conduction studies showed absent right perineal sensory response; reduced amplitude right peroneal motor compound muscle potential amplitude with normal conduction velocity; chronic neuropathic changes identified in all peroneal innervated muscle studies; and normal right posterior tibial motor nerve conduction study. The interpretation was findings consistent with a chronic or old axonal injury of the proximal right peroneal nerve proximal to the short head of the bicips femoris with no evidence of posterior division injury. While treatment records periodically document the Veteran's complaints and treatment for right leg nerve problems, nothing in these records contradicts the above VA examiners opinions as to the severity of his adverse neurological symptomatology. See Colvin, supra. In this regard, the Board notes that Wenatchee Valley treatment records document the Veteran's complaints and treatment for right lower extremity pain and weakness with an abnormal October 2006 nerve conduction study (positive for right peroneal mononeuropathy). See Wenatchee Valley treatment records dated from October 2006 to December 2006. However, they also reported that his October 2006 EMG was normal and examination of the right lower extremity revealed good range of motion, strength, and muscle tone as well as normal ankle motion. Id. The Board acknowledges that the May 2007 VA examiner noted a problem with a limp and the December 2010 examiners also reported that the limp was accompanied by dragging his right foot. Similarly, the Board acknowledges that the November 2003, May 2007, December 2009, and December 2010 examiners all reported that the Veteran had at least some objective evidence of decreased sensation over part of his calf, foot, and/or toes. Moreover, the Board acknowledges that the May 2007 and December 2009 examiners also noted a problem with reduced or absent knee and/or ankle jerks. However, the December 2010 examiner also noted that, in the right lower extremity, there was no muscle atrophy and muscle tone was normal. This medical opinion is not contradicted by any other medical evidence of record. See Colvin, supra. In fact, a similar finding was made when the Veteran was seen at Wenatchee Valley in October 2006. Moreover, while the December 2010 examiner noted a problem with limping and dragging the right foot when walking, he did not opine that this problem equated to "foot drop" as this term is used in Diagnostic Code 8531. See 38 U.S.C.A. § 4.124a. Additionally, neither the November 2005 nor the December 2009 examiner noted gait problems. In addition, the record is silent as to any objective evidence of the Veteran's disability causing a slight droop of the first phalanges of all toes, his being unable to dorsiflex the foot, extension of the proximal phalanges of toes being lost, abduction of the foot being lost, adduction being weakened, and/or anesthesia over the entire dorsum of foot and toes. See 38 U.S.C.A. § 4.124a, Diagnostic Code 8531. Furthermore, no examiner has opined that the Veteran had complete paralysis of the external popliteal nerve (common peroneal nerve). See Colvin, supra. Therefore, the Board finds that the most competent and credible evidence of record shows that Veteran's adverse neurological symptomatology is more appropriately characterized as equating to "severe incomplete paralysis" of the external popliteal nerve (common peroneal nerve) than "complete paralysis" of that nerve. Consequently, the Board finds that the Veteran does not meet the criteria for a higher evaluation under Diagnostic Code 8531 and his claim must be denied. 38 U.S.C.A. § 4.124a. This is true at all times from October 3, 2004, and therefore the Board need not consider staged ratings. Fenderson, supra. Conclusion Based on the Veteran's and his representative's claims that the appellant's adverse symptomatology is worse than rated, the Board will consider the application of 38 C.F.R. § 3.321(b)(1) (2012). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first 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 does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the right femur disability, right wrist tendonitis, and a right leg nerve disability are inadequate. A comparison between the level of severity and symptomatology of the Veteran's disabilities with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board further observes that, even if the available schedular evaluations for the disabilities are inadequate (which they are manifestly not), the Veteran does not exhibit other related factors such as those provided by the regulations as "governing norms." In this regard, while the December 2010 VA examiner noted that the Veteran lost seven weeks of work because of his disabilities he also reported that he worked full-time. The Veteran's rating contemplates interference with employment. Therefore, the Board finds that the evidence does not demonstrate an exceptional or unusual clinical picture beyond that contemplated by the rating criteria, and referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. In reaching the above conclusions, the Board has not overlooked the various lay statements found in the record. In this regard, the Veteran is competent to report on what he sees and feels such as pain, lost motion, numbness, and tingling and the claimant and others are competent to report on what they can see such as the Veteran appearing to be in pain and having difficulty at work because of the pain. See Jandreau; supra. However, the Board accords more weight to the medical opinions provided by VA's medical care providers at the Veteran's VA examinations than these lay assertions regarding the severity of disability, since these are reported by those trained in the relevant field. In adjudicating the current appeal for higher evaluations, the Board has not overlooked the Court's holding in Rice v. Shinseki, 22 Vet. App. 447 (2009) (per curiam) (holding that claims for higher evaluations also include a claim for a total rating based on individual unemployability (TDIU) when the appellant claims he is unable to work due to a service connected disability). However, the Board finds that Rice is not applicable to the current appeal because the Veteran has never claimed that any of the above disabilities prevent him from obtaining and/or maintaining employment. In fact, he specifically told his December 2010 VA examiner that he was working full-time. Therefore, the Board finds that the current decision need not consider whether the Veteran meets the criteria for a TDIU. The Board has also considered the doctrine of reasonable doubt. However, as the most competent and credible evidence is against the Veteran's claims, the doctrine is not for application. 38 U.S.C.A. § 5107(b); See also, e.g., Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A higher initial rating for a right femur disability is denied. A higher initial rating for right wrist tendonitis is denied. A higher initial rating for a right leg nerve disability is denied. REMAND As to the claims for higher initial evaluations for asthma and GERD, in the October 2010 Remand the Board noted that these disabilities had not been formally evaluated since 2005, and that the Veteran testified at his August 2010 hearing that his disabilities had significantly worsened since the 2005 examination. Specifically, he stated that he habitually used more doses of his asthma medication/inhaler than was prescribed and that he found himself vomiting from his GERD two to three times a week. The record continues to show no additional formal evaluation of these disabilities since 2005. Examination of the disabilities should be accomplished on remand. The record also shows that the Veteran receives ongoing treatment from both VA and private health care providers. Therefore, while the appeal is in remand status his contemporaneous treatment records from all available sources should be obtained and associated with the claims file including his post-March 2012 treatment records from the Spokane VA Medical Center and his post-June 2010 private treatment records from Wenatchee Valley. See 38 U.S.C.A. § 5103A(b). Accordingly, these issues are REMANDED to the RO/AMC for the following actions: 1. Associate with the claims file, physically or electronically, all of the Veteran's post-March 2012 VA treatment records including from the Spokane VA Medical Center. All actions to obtain the requested records should be documented fully in the claims file. 2. After obtaining all needed authorizations from the Veteran, physically or electronically associate with the claims file the Veteran's post-June 2010 private treatment records from all sources including Wenatchee Valley. All actions to obtain the requested records should be documented fully in the claims file. 3. After undertaking the above development to the extent possible, the RO/AMC should provide the Veteran with appropriate examinations to ascertain the current severity of his service connected asthma. The claims folder should be made available and reviewed by the examiner. The examiner should conduct the indicated pulmonary function test (PFT) as well as any other indicated tests and studies deemed appropriate. Thereafter, all clinical findings should be reported in detail. If there was a material change in the severity of the Veteran's asthma at any time since October 2004, the examiner should identify the date of this change and describe the severity of the disability before and after the change. 4. After undertaking the above development to the extent possible, the RO/AMC should provide the Veteran with appropriate examinations to ascertain the current severity of his GERD. The claims folder should be made available and reviewed by the examiner. All indicated tests and studies deemed appropriate should be accomplished and all clinical findings should be reported in detail. If there was a material change in the severity of the Veteran's GERD at any time since October 2004, the examiner should identify the date of this change and describe the severity of the disability before and after the change. 5. After undertaking any other needed development, readjudicate the claims. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case. A reasonable period of time should be allowed for response before the appeal is returned to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs