Citation Nr: 1315252 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 03-12 855 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE 1. Entitlement to service connection for a right foot disorder. 2. Entitlement to a disability rating higher than 20 percent for degenerative disc disease of the lumbar spine. 3. Entitlement to an effective date earlier of February 2011 for the grant of a 20 percent disability rating for degenerative disc disease of the lumbar spine. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran had active service from July 1980 to June 1982. This matter came before the Board of Veterans' Appeals (Board) on appeal from a May 2002 decision by the Department of Veterans Affairs (VA) Nashville, Tennessee Regional Office (RO). The Board previously remanded the claim in March 2004, and then denied the claim in July 2005 decision. The Veteran appealed the Board's July 2005 decision to the United States Court of Appeals for Veterans Claims (Court), which in a July 2006 order, granted the parties' joint motion for remand, vacating the Board's July 2005 decision and remanding the case for compliance with the terms of the joint motion. Upon remand from the Court, the Board remanded the case in February 2007 and June 2008 for further evidentiary development. In June 2009, the again denied service connection for right foot disability. The Veteran appealed the decision to the Court, which in August 2010 granted a joint motion of the parties to vacate the June 2009 Board decision and remand the case to the Board for further development and adjudication. Upon remand from the Court, the Board remanded the case in November 2010 and December 2012 for further evidentiary development. In June 2012, to comply with the Court's order, the Board requested a medical expert opinion from the Veteran's Health Administration (VHA) submitted in July 2012. The appeal also arises from a July 2012 rating decision increased the Veteran's disability rating for degenerative disc disease of the lumbar spine to 20 percent, effective July 18, 2011. In August 2012 the Veteran appealed for a higher rating and an earlier effective date for the rating increase. The claims seeking a disability rating higher than 20 percent for degenerative disc disease of the lumbar spine and to an earlier effective date for the grant of a 20 percent disability rating for degenerative disc disease of the lumbar spine, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT The preponderance of the evidence shows that the Veteran's right foot disability first manifested many years after his separation from service and is not related to his period of service or to any incident therein. CONCLUSION OF LAW The Veteran's right foot disability was not incurred in or aggravated by his active service. 38 U.S.C.A. §§ 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished in letters sent in November 2001, November 2004, May 2007, and July 2008. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). The letters also provided notice of the type of evidence necessary to establish a disability rating or effective date for the claimed disability under consideration, pursuant to the recent holding in Dingess v. Nicholson, 19 Vet App 473 (2006). Thereafter, the claim was readjudicated in the February 2013 supplemental statement of the case. The claimant was provided the opportunity to present pertinent evidence. Following the Board's November 2010 remand, the AMC made appropriate efforts to obtain copies of any outstanding service treatment records to specifically include examination reports relating to an August 1980 x-ray report, with no new records obtained. A Formal Finding of Unavailability was issued in March 2012 explaining that the National Personnel Records Center (NPRC) provided a negative response in December 2010, indicating that the Veteran's service treatment records had been provided to the RO in April 2002. The March 2012 Formal Finding of Unavailability certifies that all efforts to obtain additional records described by the Veteran have been exhausted, further attempts would be futile, and that it is believed that all service treatment records have been associated with the claims file. As all appropriate avenues have been exhausted, and further considering the fact that service treatment records from the locations and time periods described by the Veteran appear to be contained in the set available for review, the Board finds no cause to question the formal finding that all service treatment records have been associated with the claims file. The Board finds that the duty to assist has been fulfilled as to obtaining the Veteran's service treatment records. The Virtual VA file, and available private and VA treatment records have been obtained. In addition, he was afforded VA examinations and a VHA opinion in connection with the claim on appeal. He has not indicated there are any additional records that VA should seek to obtain on his behalf. Therefore, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required. Service connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection must be considered on the basis of the places, types and circumstances of a Veteran's service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence. Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Moreover, where a Veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an 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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002). In order to rebut the presumption of soundness at service entry, there must be clear and unmistakable evidence showing that the disorder pre-existed service and there must be clear and unmistakable evidence that the disorder was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Veteran asserts that service connection is warranted for a right foot disability because the condition had its onset during service. Specifically, he contends that he developed right foot problems while performing his duties in service that required him to march and run long distances in boots that offered no foot or arch support. The service treatment records reflect that at service entrance in June 1980 the Veteran reported a history of right foot problem, but no foot pathology was noted on examination. The clinician noted a history of fracture of the right fifth metacarpal in 1975, treated with a cast, with no sequale. The Board notes that a history provided by the Veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition. 38 C.F.R. §§ 3.304(b)(1); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). In this case, the presumption of soundness applies because the Veteran's induction examination found his right foot to be normal. Moreover, the presumption of soundness has not been rebutted by clear and unmistakable evidence. In this regard, the Board finds that there is insufficient evidence establishing that a right foot disorder clearly and unmistakably existed prior to service. The only evidence suggesting that there may have been a pre-existing disorder is the Veteran's own reported history at the time of his induction examination, which does not amount to clear and unmistakable evidence, particularly in light of the physical examination findings at that time. Thus, it cannot be said that there is clear and unmistakable evidence showing that he had a preexisting right foot disorder. Accordingly, the presumption of soundness is not rebutted. Therefore, the Board's analysis must turn to the issue of whether a current disorder was incurred during the Veteran's active service. Wagner. The Board must assess the Veteran's competence and credibility to assert that his right foot disability had onset in service. A Veteran is competent to testify to factual matters of which he had first-hand knowledge. The Board finds that the Veteran is competent to report that he had right foot problems following an in-service injury or repeated foot strain, and that his right foot remained symptomatic since service. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994); 38 C.F.R. § 3.159(a)(2) (2012). To the extent that the Veteran reports recurrence of right foot symptomatology since service, the Board acknowledges that lay evidence concerning recurrent symptoms after service, if credible, can be competent, despite the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). Here the Board finds that the Veteran's contentions are not credible because they are inconsistent with the contemporaneous evidence of record. The service treatment records show that in August 1980 the Veteran's right foot was found to be swollen below the ankle. X-ray examination at that time was negative for any fracture. There are no further records relating to this incident. A record dated September 25, 1981, reflects that the Veteran complained of an injury to his left foot when he fell and hit a metal rail. A follow-up musculoskeletal assessment dated September 29, 1981, stated that the Veteran hurt his left foot four days previously while walking. The examiner first wrote "R" for right foot, but then wrote the letter "L" on top, for left foot. This record has caused some confusion during the pendency of the appeal. The Board finds that the record refers to a left foot injury as opposed to any right foot injury. On his May 1982 report of medical history at separation, the Veteran stated that he suffered from "foot problems due to excessive strain." The clinician noted a right foot fracture that had resolved. There are no service treatment records relating to any other complaints, diagnosis, or treatment for the right foot. Examination of the right foot on separation revealed no abnormalities. The Board finds that the service medical records lack the combination of manifestations sufficient to identify a chronic right foot condition and sufficient observation to establish chronicity in service as distinguished from merely isolated findings. Here, the record suggests that the in-service August 1980 complaints were associated with an isolated event that resolved. The evidence also does not reflect that there were any complaints, diagnoses, or treatment for a right foot disability within one year after the Veteran's separation from service. Thus the Board finds that chronicity of a right foot disability in service is not established in this case. 38 C.F.R. § 3.303(b) (2012). Post-service treatment records reflect treatment numerous times for right foot pain. In March 2002, the Veteran complained of pain in the right heel with weight bearing. He was diagnosed as suffering from heel pain with a probable heel spur or plantar fasciitis. A March 2002 x-ray revealed moderate hallux valgus deformity with moderately severe degenerative changes at the first metatarsal phalangeal joint, as well as calcaneal spur at the plantar fasciitis. In May 2004, the Veteran sustained a right ankle bi-malleolar fracture when he fell off a bicycle. At that time, he underwent an open reduction and internal fixation with plate and screws. In November 2005, the Veteran was diagnosed as having hallux limitus bilaterally. In December 2005, the Veteran complained of pain in his right hallux metatarsal phalangeal joint for 3 to 4 years. He had a bunionectomy on his right foot that same month. In September 2008, he complained of sharp burning pain in his right first metatarsal phalangeal joint. In December 2008, the Veteran complained of inability to move his right toe. In February 2009 the Veteran had surgery for removal of the right ankle hardware that was placed following the May 2004 ankle surgery. In December 2009, the Veteran reported pain and decreased range of motion in his right hallux. In January 2010, he had a right hallux metatarsal phalangeal joint hemiarthroplasty and cheilectomy. Subsequent VA treatment records show continued complaints of right foot pain. In December 2012 the Veteran reported bilateral foot for years, with more foot pain after long marches in service. In summary, following service discharge, the next record of treatment for a right foot condition is not until 2002 when the Veteran was seen for pain in the right heel with weight bearing, and x-rays revealed moderate hallux valgus deformity with moderately severe degenerative changes at the first metatarsal phalangeal joint, as well as calcaneal spur at the plantar fasciitis. There is no evidence of treatment for right foot problems until at least 2002, approximately 20 years after service and the initial radiographic documentation of degenerative changes of the right foot or ankle is well beyond the one-year presumptive period for manifestation of arthritis, service connection cannot be established for arthritis of the right foot on a presumptive basis. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The Board has weighed statements made by the Veteran as to incurrence of a right foot disability during service and recurrence of right foot symptoms and finds the current recollections and statements made in connection with a claim for benefits to be of less probative value. As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran. Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). In considering the statements of the Veteran as to in-service right foot injury and recurrent symptoms, in light of the evidence discussed, the Board finds that they did not present a persuasive history because they contradict other evidence of record. In this regard, while the service treatment records show and incident of a right foot symptoms for which the Veteran was treated in August 1980, x-rays did not reveal a right foot fracture and the condition appears to have resolved with treatment. To the extent that the Veteran reported a history of right foot fracture on separation from service, the notation appears to have been based on history provided by the Veteran and was not supported by the medical evidence, such as x-ray evidence. A right foot fracture was not diagnosed in service. Moreover, the Veteran denied foot problems on separation form service and his right foot was clinically evaluated as normal. Significantly, post-service discharge the medical treatment records do not show any report of trauma to the right foot until many years after service, and there is no evidence x-ray evidence of fracture until May 2004 when the Veteran sustained a right ankle bi-malleolar fracture when he fell off a bicycle. Therefore, the Board finds that recurrence of symptoms has not been established, either through the competent evidence or through the Veteran's statements. This is because his statements as to having an injury with recurrence of symptoms are less persuasive than the service treatment records that show a right foot condition that resolved with treatment with no additional residuals. Therefore, the Board finds that recurrence of symptomatology has not here been established, either through the competent evidence or through the Veteran's statements, because his statements are not considered credible. For these reasons, to the extent that clinicians noted the Veteran's report of onset of a right foot disability in service, a bare transcription of lay history is not transformed into competent medical evidence simply because it was transcribed by a medical professional, whether that professional be a VA or private physician. LeShore v. Brown, 8 Vet. App. 406 (1995). On the question of medical causation or medical evidence of an association or link between the claimed right foot disability, first noted after service, and service, VA obtained medical opinions, which considered the Veteran's contentions and the service medical records. However, the medical opinions did not associate the Veteran's right foot disability with service. 38 C.F.R. § 3.303(d) (2012). On VA examination in November 2007, the Veteran was diagnosed with hypermobility of the first metatarsal phalangeal joint and subsequent hallux limitus of the right side. X-rays showed a distal tibial and fibular ORIF joint prosthesis base first proximal phalanx, as well as a left distal common calcaneal spur without other abnormality. The Veteran was also noted to have a small contra lateral spur. An opinion regarding the etiology of the right foot disability was not provided. On VA examination in August 2008, the examiner noted that the Veteran suffered from limitation in dorsiflexion of his right ankle joint. The screws from the ankle fixation caused some tenderness on palpation, and the Veteran had limitation in the range of motion of the first metatarsal phalangeal joint, thus causing some dorsal pain. In an August 2008 addendum, the examiner found that there was insufficient information regarding anything that was happening to the right foot as a residual result of something happening in service. Accordingly, the examinations were determined to be inadequate for rating purposes. On VA examination in December 2010, the Veteran was diagnosed as suffering from residuals of surgery of the right great toe. The examiner opined that the condition was not caused by or the result of active duty. The examiner concluded, based on examination of the Veteran, extensive review of the records, medical training, clinical experience and expertise, that there was no factual basis to relate the Veteran's current right foot condition to anything while in active duty. The Board determined that the VA examiners' opinions were insufficient to decide the Veteran's claim on the merits as none of the examiners specifically addressed his competent report of marching with heavy packs during active service. As such, in June 2012 the Board sought an expert opinion from a VHA specialist as to the nature and etiology of the Veteran's right foot complaints. In an opinion in July 2012, the reviewing VHA physician diagnosed the Veteran's right foot condition as right heel pain in 2002 and right metatarsophalangeal pain with mild bunion deformity and hallux limitus (degenerative joint disease). Currently, the condition was status post-correction of bunion deformity and hallux limitus with hemiarthroplasty and revision hemiarthroplasty eight hallux rigidus. The VHA physician opined that more than likely the Veteran's heel pain was due to plantar fasciitis as evidenced in 50 percent of the cases with heel spur. The VHA physician observed that the Veteran's right foot was evaluated as normal upon service entry, and on physical examination on discharge in June 1982, there was no diagnosis pertaining to the right foot on the chart. The notation of "right foot fracture resolved" was rendered without a radiographic evidence, without which the clinician would be unable to diagnose a fracture. As such, the notation was based on history provided by the Veteran, as the Veteran understood the condition, and was not supported by the medical evidence, such as x-ray evidence. Moreover an August 1980 x-rays revealed no fractures. Nonetheless, to the extent that there may have been a right foot problem at some point, it was resolved on separation from service as evidenced by the fact that on examination the right foot was found to be normal. To the extent that the Veteran claimed to have developed the right foot disability due to foot strain in the performance of his duties, the VHA physician noted the Veteran's report of a history of strain to the foot in 1982, and opined that if the Veteran had been suffering from significant deformities, as claimed, he would have been unable to perform as indicated by carrying heavy backpacks for long distances without residual effect. Based on a review of the medical evidence, the VHA physician further opined that surgical treatment provided for the right foot post-service discharge was caused by activity after the Veteran left service. The VHA physician explained that the median lateral malleolus that were fractured would not contribute to the alignment problems of the metatarsophalangeal joint. Hallux valgus was regarded as an acquired condition that occurred over time and not as a result of a single injury or event. The reason for its exclusion was that the pain, location and indication of the clinician of right foot swelling, as noted in August 1980, occurred outside the foot below the ankle indicative of a lateral ankle sprain. The post-service complaints, as registered by the Veteran, were caused by conditions on the inside of the medial part of the foot. Thus, the area of injury indicated in 1980 was on the outside (lateral side) side of the right foot and did not impact the medial (great toe) side of the foot. Accordingly, the VHA physician concluded, for the above reasons, that there was no causation of foot pathology on the right relating to or having had onset in active service. The VHA physician further reported that the opinion was based upon reasonable medical history and x-ray findings as interpreted by competent medical personnel in the evidence of record. The VHA physician, unlike the Veteran, has specialized expertise in the area of orthopaedic disorders and is able to render a competent opinion regarding the likelihood that the claimed right foot condition is related to service. Also, the VHA physician's opinion is based on review of the claims folder, to include the Veteran's service and post-service treatment records. The physician also addressed the Veteran's reports of a right foot injury and foot strain in service and his complaints of pain since service, and explained, based on sound medical principles, why the Veteran's right foot disability was less likely than not related to service, despite the Veteran's assertions. Significantly, the VHA opinion is consistent with the evidence of record. In this regard, VA examiner in December 2010, he also cited to and discussed the relevant medical evidence, to include the service induction and separation examination reports, the August 1980 treatment record and x-ray findings, and the post-service clinical evidence, and opined that it was not likely that the Veteran's right foot condition was caused by his military service. While the Veteran is competent to report his foot problems, he is not competent to render an opinion regarding its etiology. Thus, in summary, the preponderance of the credible and probative evidence shows that his current right foot disability manifested more than one year after discharge from service and is not otherwise related to active service. For these reasons, the preponderance of the evidence weighs against the award of service connection for the right foot disorder and thus service connection must be denied. In reaching these conclusions, the Board notes that, under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be given to the claimant in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the Veteran's claim in this case, and that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a right foot disability is denied. REMAND As noted in the introduction, a July 2012 rating decision increased the Veteran's disability rating for degenerative disc disease of the lumbar spine to 20 percent, effective July 18, 2011. In August 2012 the Veteran appealed for a higher rating and an earlier effective date for the rating increase. The Board accepts the Veteran's August 2012 statement as a Notice of Disagreement with the July 2012 rating decision. See 38 C.F.R. § 20.201 (2012). To date, however, a review of the paper and electronic records shows that the RO has not issued the Veteran a Statement of the Case (SOC) with respect to these claims. Under the circumstances, the Board has no discretion and is obliged to remand the issues to the RO for the issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). Accordingly, the case is REMANDED for the following action: Issue a statement of the case which addresses the claim of entitlement to a disability rating higher than 20 percent for degenerative disc disease of the lumbar spine, and the claim for an earlier effective date for the grant of a 20 percent disability rating for degenerative disc disease of the lumbar spine. Inform the Veteran of his appeal rights and that he must perfect a timely appeal for the issues to be considered by the Board. The appellant has the right to submit additional evidence and argument on the matter or matters 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 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs