Citation Nr: 1315280 Decision Date: 05/09/13 Archive Date: 05/15/13 DOCKET NO. 09-37 002 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for remote fracture of the right great toe with residual degenerative joint disease. 2. Entitlement to service connection for a right hip disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his sister ATTORNEY FOR THE BOARD M. J. In, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1966 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) from May 2008 and August 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In March 2013, the Veteran testified at a videoconference hearing before the undersigned Veterans' Law Judge. A transcript of that hearing has been associated with the claims file. The Veteran filed his initial claim for service connection for a right hip disability in July 2005 and the RO denied the claim in November 2005. The Veteran filed his present claim in August 2007 and in a May 2008 the RO decided that new and material evidence has not been submitted to reopen the claim of service connection for a right hip disability. However, in a January 2008 statement, the Veteran indicated that he never received any notice that his original claim was denied. At the March 2013 Board hearing, the Veteran's representative pointed out that the copy of November 2005 rating decision sent to the Veteran was returned to the Board on November 29, 2005, stamped "no such number" by the post office, which was evidence that the Veteran, in fact, never received a copy of the November 2005 rating decision that denied his initial service connection claim. The Board agrees and will adjudicate the claim on appeal as an original service connection claim. The Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service- connected disability, either expressly raised by the veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. The record contains a July 2012 correspondence from the Veteran's former employer stating that the Veteran was unable to perform his job duties, including sweeping, mopping and buffing floors because of the pain in his foot and leg, following his left foot surgery in November 2002. However, it makes no reference to the Veteran's right great toe disability currently on appeal. Thus, the Veteran has not argued, and the record does not otherwise reflect, that the disability at issue renders him totally unemployable. Accordingly, the Board concludes that the issue of entitlement to a TDIU is not before the Board at this time. The issue of entitlement to service connection for a right hip disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's remote fracture of the right great toe with residual degenerative joint disease is manifested by achiness, stiffness, swelling, and inability to push off on the right foot or stand on tippy toes. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for remote fracture of the right great toe with residual degenerative joint disease have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.71a, Diagnostic Code 5284 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has met all statutory and regulatory notice and duty to assist provisions under the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran's claim concerning the proper disability rating to be assigned to his service-connected right toe disability arises from his disagreement with the initial disability rating assigned to this condition following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice as to these claims is needed under VCAA. The duty to assist the Veteran has also been satisfied in this case. The RO has obtained the Veteran's service treatment records, as well as his post service medical records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA examinations were conducted in July 2009 and September 2012. 38 C.F.R. § 3.159(c)(4). As these examinations included sufficient detail as to the current severity of his service-connected disability, the Board concludes that these examinations are adequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Although the September 2012 VA examination did not indicate that the Veteran's claims file was reviewed, the Board finds that this does not constitute a prejudicial error. Here, an increase in the disability rating is at issue and the present level of the Veteran's service-connected disability is of primary concern. As it would not change the objective and dispositive findings made during the VA examination, review of the claims file was not required. See Snuffer v. Gober, 10 Vet. App. 400, 403-04 (1997). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) (2012) 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 Board hearing, the VLJ explained the issues on appeal and the evidence necessary to substantiate the Veteran's claim for an increased rating. The Veteran was assisted at the hearing by an accredited representative from the American Legion. The representative and the VLJ asked questions to ascertain the current state of the Veteran's service-connected disability, and the hearing focused on the evidence necessary to substantiate the Veteran's claim of increased rating for his right toe disability. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2012). Evaluation of a service-connected disability requires a review of a veteran's medical history with regard to that disorder. However, the primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. While the entire recorded history of a disability is important for more accurate evaluations, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where a veteran appeals the initial rating assigned for a disability, evidence contemporaneous with the claim and the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." See Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time. Id. 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. 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. An August 2009 rating decision granted service connection for remote fracture of the right great toe with residual degenerative joint disease and assigned a 10 percent initial rating under 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5284 (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned, the additional code is shown after the hyphen). Diagnostic Code 5010 directs that the evaluation of arthritis, due to trauma, be conducted under Diagnostic Code 5003, which states that 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. 38 C.F.R. § 4.71a, Diagnostic Code 5010. When, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. In the absence of limitation of motion, X- ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent; in the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. In this case, both the July 2009 and September 2012 VA examiners noted that X-ray revealed mild osteoarthritic changes involving the interphalangeal joints and the 1st metatarsophalangeal joint. Although limited range of motion was not found on examination, an initial 10 percent rating was assigned under Diagnostic Code 5010, for traumatic arthritis, based on this radiologic evidence coupled with the Veteran's credible reports of pain in the right great toe and limited motion. 38 C.F.R. § 4.71a, Diagnostic Code 5010. However, a 20 percent rating for traumatic arthritis is not warranted rating under the same Diagnostic Code as the September 2012 VA examiner pointed out the arthritis did not exist in multiple joints in the same foot. Id. As to rating the Veteran's right great toe disability under one of the other Diagnostic Codes for the foot, the Board notes that Diagnostic Code 5284 provides a 20 percent rating for a moderately severe foot injury and a 30 percent rating for a severe foot injury. 38 C.F.R. § 4.71a. Loss of use of the foot is evaluated as 40 percent disabling. Id. Initially, the Board notes that the term "moderately severe" as used in Diagnostic Code 5284 is not defined by regulation. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2012). It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2012). In this regard, the Board notes that the overall regulatory scheme relating to rating disabilities of the feet and toes contemplates 20 percent ratings in cases where problems include such difficulties as dorsiflexion of all toes unilaterally and marked tenderness under the metatarsal heads. See 38 C.F.R. § 4.71a, Diagnostic Code 5278 (no more than 10 percent is warranted even if the great toe is dorsiflexed). A 20 percent rating may also be assigned when there is moderately severe malunion or nonunion of the tarsal or metatarsal bones. See 38 C.F.R. § 4.71a, Diagnostic Code 5283. However, the record does not suggest that the Veteran's disability approximates such a degree of severity. At the July 2009 VA examination, the Veteran did not indicate symptoms of pain, swelling, heat, redness, stiffness, fatigability, weakness, or lack of endurance. He reported a history of right great toe fracture but that it had healed. On physical examination, there was no evidence of painful motion, swelling, tenderness, instability, weakness, or abnormal weight-bearing. At the September 2012 VA examination, the Veteran reported that since the right foot injury in service, he had been unable to push off on his right foot or stand on tippy toes. He also reported that it was somewhat stiff and achy. At his March 2013 hearing before the Board, the Veteran testified that he experienced numbness, pain and swelling in the right foot. He also stated that he was not able to stand on tippy toes unless he hold onto something and he used his right foot less because he did not want to put pressure on his right side. In sum, the manifestations of the Veteran's right great toe disability include achiness, stiffness, swelling, and inability to push off on his right foot or stand on tippy toes. The Board finds that the disability picture in this case is not congruent to the severity of having dorsiflexion of all toes unilaterally, marked tenderness involving the metatarsal foot head, or moderately severe malunion or nonunion of the tarsal or metatarsal bones that would warrant a 20 percent rating under other comparable diagnostic codes concerning foot disabilities. While the Veteran's treatment records document his complaints and treatment for feet, including diabetic foot care, nothing in these records show his adverse symptomatology to be worse than what was reported at the above VA examinations. Consequently, the Board finds that, while the term "moderately severe" is not defined by regulation, when compared with other comparable ratings for the feet, this term must be understood to require greater difficulties than those currently experienced by the Veteran (i.e., some achiness, stiffness and swelling in the right foot and inability to push off on the right foot and stand on tippy toes), even when considering functional limitations due to pain and the other factors identified in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. at 204-7. As suggested by the above reference to other Diagnostic Codes, the Veteran's difficulties are not tantamount to more than moderate impairment even when pain is considered given the fairly functional findings by both of the above VA examiners. To that effect, at the July 2009 VA examination, the Veteran reported that he was able to stand for 15 minutes and walk for three city block. At the July 2009 VA examiner, the Veteran had an antalgic gait but it was noted due to his right knee problem. Also, the September 2012 VA examiner noted that the Veteran was using a rolling walker but ever since he had a subdural hematoma. The July 2009 examiner noted that the problem associated with the diagnosis was right foot pain; however, found that it had no significant effect on general occupational activities. In this regard, the Veteran reported that he was currently employed full time as a security guard for 2 to 5 years but did not miss work during the previous 12-month period. Similarly, the July 2012 VA examiner found that the Veteran's right foot condition did not impact his ability to work. Thus, the level to which the evidence establishes symptomatology in that area, due to the right great toe disability alone, does not constitute a moderately severe foot injury such that a 20 percent initial rating is warranted under Diagnostic Code 5284. Accordingly, the Board finds that an initial rating in excess of 10 percent is not warranted for the Veteran's remote fracture of the right great toe with residual degenerative joint disease. 38 C.F.R. § 4.71a, Diagnostic Code 5284. This is true at all during the pendency of the appeal and therefore the Board need not consider further staged ratings. See Fenderson, 12 Vet. App. at 126. Other diagnostic codes pertaining to the foot have been considered. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). As the evidence does not reflect diagnoses of flatfoot, weak foot, claw foot, anterior metatarsalgia, hallux rigidus, hammer toe, malunion of the tarsal or metatarsal bones, Diagnostic Codes 5276, 5277, 5278, 5279, 5280, 5281, 5282, and 5283 are not for application. 38 C.F.R. § 4.71a, Diagnostic Codes 5276, 5277, 5278, 5279, 5280, 5281, 5282, 5283 (2012). The July 2009 VA examiner found no hammertoes, hallux valgus or rigidus, skin or vascular foot abnormality, claw foot, or malunion or nonunion of the tarsal or metatarsal bones, muscle atrophy or other foot deformity. The September 2012 VA examiner also indicated that the Veteran did not have Morton's neuroma, hammer toes, hallux valgus, hallux rigidus, malunion or nonunion of the tarsal or metatarsal bones, or bilateral weak foot. The September 2012 VA examiner specifically indicated that there was no functional impairment of an extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. Thus, loss of use of the foot is not shown in this case. 38 C.F.R. § 4.71a. In a June 2008 letter, a private podiatrist stated that the Veteran was seen with Morton's neuroma, and interdigital neuroma, in the 3rd interspace of the right foot in March 2008. While there is no evidence that these symptoms are related to the Veteran's service-connected remote fracture of the right great toe with residual degenerative joint disease, the maximum rating available for Morton's disease is 10 percent under Diagnostic Code 5279. Thus, further discussion of this diagnostic code is of no benefit to the Veteran. The Veteran testified at the March 2013 Board hearing that his right great toe disability had worsened since it was originally rated in 2009. The Veteran's medical records since then have been included in the record and considered in conjunction with this appeal and he was provided a recent VA examination in September 2012. There is no indication that the right great toe disability has worsened since it was last examined in September 2012. Therefore, there is no need for another examination. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular evaluation. 38 C.F.R. § 3.321(b) (1) (2012). Otherwise, the schedular evaluation is adequate, and referral is not required. Thun, 22 Vet. App. at 116. The schedular rating in this case is adequate. The diagnostic criteria contemplate and adequately describe the symptomatology of the Veteran's service-connected remote fracture of the right great toe with residual degenerative joint disease. See Thun, 22 Vet. App. at 115. The Veteran's complaints of right foot symptoms of achiness, stiffness, swelling and inability to push off on the right foot or stand on tippy toes, are adequately contemplated by the Rating Schedule. Specifically, the rating criteria for Diagnostic Code 5284 broadly rate the Veteran's symptoms as "moderate," "moderately severe," or "severe." All of the Veteran's foot and toe-related complaints have been taken into account in assigning the rating under these broadly defined, catch-all provisions of Diagnostic Code 5284. Accordingly, a comparison of the Veteran's symptoms and functional impairments resulting from remote fracture of the right great toe with residual degenerative joint disease with the pertinent schedular criteria does not show that his service-connected right toe disability presents "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b). Consequently, the Board finds that the available schedular rating is adequate to rate the Veteran's remote fracture of the right great toe with residual degenerative joint disease. Based on this threshold finding, there is no need to consider whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization. See Thun, 22 Vet. App. at 118-19 (holding that the Board's finding that the rating criteria were adequate to evaluate the claimant's disability was a sufficient basis for denying extraschedular consideration without regard to whether there was marked interference with employment). As such, referral for extraschedular consideration is not warranted. See VAOPGCPREC 6-96. ORDER Entitlement to an initial rating in excess of 10 percent for remote fracture of the right great toe with residual degenerative joint disease is denied. REMAND The Veteran is seeking service connection for a right hip disability. Based upon its review of the Veteran's claims file, the Board finds there is a further duty to assist the Veteran with this claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The law provides that 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. §§ 1110, 1111 (West 2002). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b) (2012). When no pre-existing condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both pre-existing and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the pre-existing condition." 38 U.S.C. § 1153. If this burden is met, then the veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under 38 U.S.C.A. § 1111, the veteran's claim is one for service connection. Conversely, if a pre-existing disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. See Wagner, 370 F. 3d at 1094-1096. In that case, 38 U.S.C.A. § 1153 applies and the question becomes whether the disability worsened in service. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the presumption of aggravation under 38 U.S.C.A. § 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306 (2006); Jensen, 19 F.3d at 1417; Wagner, 370 F. 3d at 1096 (Fed. Cir. 2004). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. 1153; 38 C.F.R. 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The presumption of sound condition on service entrance does not apply in this case because there is evidence prior to service entrance that the Veteran had fractured his right hip at the age of 18 while playing football in high school and his June 1965 enlistment examination notes his history of open reduction for right femur fracture with placement of rods in the leg. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b). The issue thus becomes whether the Veteran's pre-existing disorder was aggravated by service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. The Veteran was provided a VA examination in July 2009 in conjunction with this claim. The July 2009 VA examiner opined that the Veteran's right hip condition was less likely than not (less than 50 percent probability) caused by or a result of active military duties. In support of this opinion, the examiner noted that the Veteran was able to return to active duty requirements after the nails were removed from the hip and that there was no further worsening of condition during active duty, no subsequent care for the hip, or evidence of continuation of the problem in the subsequent years. However, the Board finds that the VA examiner's opinion has very limited probative value as it did not adequately address evidence of aggravation. The Veteran's service treatment records document multiple right hip complaints beginning June 1966, which culminated in his October 1967 right hip surgery involving a removal of the nails in his right hip that were placed prior to service. The Veteran was placed on physical profile with temporary assignment limitation, with no crawling, stooping, running, jumping, prolonged standing or marching, or strenuous physical activity at least through December 1967. However, in light of the foregoing evidence, the examiner did not address the question of whether the Veteran's preexisting right hip disorder worsened in service, and if so, whether the evidence clearly and unmistakably established that it was not aggravated by service. Furthermore, the VA examiner did not consider the Veteran's statements concerning symptoms experienced in service and continued after service. In this regard, the Veteran testified at his March 2013 Board hearing that in October 1967, he re-injured his right hip while playing intramural baseball and underwent a removal of the nails in his right hip that were placed prior to service. He stated that ever since that time, his right hip condition was worse off and he experienced problem with standing for a long time. He further stated that he was in recovery until January 1968 and was subsequently assigned to light duty in a support company where he mainly performed administrative duties, such as post work detail, and was not required to pass the physical training (PT) until his separation from service in May 1968. To that effect, lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (quoting Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the VA examiner failed to address the Veteran's lay testimony of record. Instead, the examiner determined, incorrectly, that lack of treatment records are the only evidence which can provide the basis for an opinion concerning etiology. Given the deficiencies in the July 2009 VA examination report the Board finds it inadequate for VA purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that if VA provides a Veteran with an examination in a service connection claim, the examination must be adequate). Consequently, the case must be remanded for another medical opinion. Accordingly, the case is REMANDED for the following action: 1. Obtain all updated treatment records for the Veteran from the VA Medical Center in Birmingham, Alabama, and all associated outpatient clinics, dated from November 2012 to the present. All attempts to obtain those records should be documented in the claims file. 2. Schedule the Veteran a VA examination to determine the nature and etiology of his currently diagnosed right hip disability. Specifically, the examiner should provide an opinion as to (1) whether the Veteran's right hip disability that pre-existed his service worsened in service, and (2) if so, whether the evidence clearly and unmistakably establishes that it was not aggravated by service. The examiner is instructed that to find that the disability in question clearly and unmistakably was not aggravated by service, the evidence must be obvious, manifest, and undebatable in establishing that it was not aggravated by service. In doing so, the examiner is requested to specifically reference the pertinent service treatment records, to include the Veteran's ongoing complaints of right hip pain since June 1966, his October 1967 right hip surgery, and physical profile prohibiting crawling, stooping, running, jumping, prolonged standing or marching, or strenuous physical activity from October 1967 through at least December 1967. The examiner is also asked to fully consider the Veteran's lay testimony concerning symptoms experienced in service and continued after service, indicating that he re-injured his right hip while playing intramural sports, that his right hip condition was worse off and he experienced problem with standing for a long time ever since his right hip surgery in service, and that he was in recovery until January 1968 and following the surgery he was not required to pass the PT until his separation from service in May 1968. Aggravation exists when there is an increase in disability during such service that is not due to the natural progress of the disease. Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered aggravation unless the underlying condition, as opposed to symptoms, is worsened. Aggravation may not be conceded where the underlying disability underwent no increase in severity during service. A complete rationale must be provided for any opinion stated, citing to claims file documents as appropriate. All opinions should be supported by a clear rationale. 3. Notify the Veteran that he must report for the scheduled examination and cooperate in the development of the claim. Failure to report for a VA examination without good cause may result in denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 4. After completing the above, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, provide a supplemental statement of the case to the Veteran, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond. 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). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs