Citation Nr: 1315540 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 04-06 783 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial evaluation in excess of 20 percent for lumbosacral strain with post-operative herniated disc repair at L5-7 and degenerative disc disease. 2. Entitlement to an initial evaluation in excess of 10 percent for tendonitis of the right Achilles from August 3, 2001 to December 4, 2007 and in excess of 20 percent therefrom. 3. Entitlement to an initial evaluation in excess of 10 percent for tendonitis of the left Achilles. 4. Entitlement to service connection for a disability of the digestive system claimed as gastroenteritis, to include as secondary to service-connected major depressive disorder and/or the medications taken for service-connected disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from August 1962 to October 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2002 rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA) and from a November 2006 decision of the Appeals Management Center (AMC). The Veteran testified at a Board hearing before a Veterans Law Judge in September 2011. A transcript of this hearing is in the claims folder. Unfortunately, the Veterans Law Judge who conducted this hearing has since retired from the Board. The Veteran was notified of this in a March 2013 letter and was given 30 days to indicate whether he desired a new hearing. He did not reply, and as indicated in the letter the Board will assume he does not desire another hearing and will proceed with adjudication of his appeal. The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. This record contains VA treatment reports dating through March 2013, which includes a single instance of treatment for the Veteran's back disability. This record is dated subsequent to the most recent supplemental statement of the case. However, this record does not address the criteria necessary to evaluate the Veteran's disability. Furthermore, the record specifically states that diagnostic findings had not changed since a study that was previously considered by the RO, and therefore is not an indicator that the disability has increased in severity since the most recent VA examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997). It does not contain any other relevant evidence not already in the claims folder or considered by the RO. Therefore, the Board may proceed with consideration of the Veteran's appeal without fear of prejudice to his appeal. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). These matters were previously before the Board in October 2006, July 2009, and December 2011, but were remanded for additional development. Unfortunately, as will be explained below, it is necessary to once again remand the appeal for entitlement to increased evaluations for both Achilles tendon disabilities, as well as the claim of service connection for an intestinal disability claimed as gastroenteritis. These matters 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. The December 2011 Board decision also noted that the Veteran's representative had raised the issue of entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU). This matter was referred to the RO for appropriate action, but a review of the record indicates that it has not been addressed. However, the record further reflects that the Veteran was awarded a 100 percent evaluation for his service connected major depressive disorder in an April 2013 rating decision. Moreover, this rating decision also awarded the Veteran special monthly compensation based on having one disability evaluated as 100 percent disabling and additional service connected disabilities that were independently ratable at 60 percent or more. See 38 C.F.R. § 3.350(i) (2012). Therefore, as an award of TDIU cannot result in any additional benefit to the Veteran, this matter is now moot, and no further action is required by the RO. See Bradley v. Peake, 22 Vet. App. 280 (2008). FINDINGS OF FACT 1. No more than moderate intervertebral disc syndrome has been displayed under criteria in effect at the time of the Veteran's claim. 2. The Veteran's limitation of motion of the lumbar spine has been no more than moderate for the entire period on appeal under criteria in effect at the time of the Veteran's claim. 3. The Veteran's most recent VA examination found that his degenerative disc disease has been productive of incapacitating episodes of at least one week but not more than two weeks duration over the previous 12 months; no further evidence regarding incapacitating episodes is of record. 4. The Veteran retains at least 60 degrees of forward flexion of the thoracolumbar spine, and no ankylosis has been demonstrated. 5. There were no flare-ups noted on examination, and no additional impairment has been demonstrated due to pain, weakness, incoordination or excess fatigability with repetitive use. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for lumbosacral strain with post-operative herniated disc repair at L5-7 and degenerative disc disease have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a, Codes 5292, 5293 (2002); 38 C.F.R. §§ 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Code 5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b)(1) (2012). Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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 of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must inform a claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. The record here demonstrates that the Veteran has been provided with numerous letters during the adjudication of his initial claim and appeal, with the initial letter dating from August 2001, which was prior to the initial adjudication of his claim. However, this appeal arises from a disagreement with the initial evaluation following the grant of service connection. The courts have held that once service connection is granted the claim is substantiated, and additional VCAA notice is not required; thus 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). The Board concludes that the duty to notify has been met. The Board further concludes that the duty to assist has also been met. The Veteran's service treatment records have been obtained. Private medical records, VA treatment records, and records from the Social Security Administration (SSA) have been obtained. The Veteran has offered testimony at a Board hearing, a transcript of which is of record. He was afforded appropriate VA examinations that include the information necessary to evaluate his disabilities. There is no indication that there is any relevant evidence outstanding in this claim, and the Board will proceed with consideration of the appeal. Increased Evaluation The evaluation of service-connected disabilities is based on the average impairment of earning capacity they produce, as determined by considering current symptomatology in the light of appropriate rating criteria. 38 U.S.C.A. § 1155. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition, the entire history of the veteran's disability is also considered. Consideration must be given to the ability of the veteran to function under the ordinary conditions of daily life. 38 C.F.R. § 4.10. If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. The Board notes that this issue involves the Veteran's dissatisfaction with the initial rating for his disability assigned following the grant of service connection. The United States Court of Appeals for Veterans Claims (Court) has found that there is a distinction between a Veteran's disagreement with the initial rating assigned following a grant of service connection, and the claim for an increased rating for a disability in which entitlement to service connection has previously been established. In instances in which the Veteran disagrees with the initial rating, the entire evidentiary record from the time of the claim for service connection to the present is of importance in determining the proper evaluation of disability, and staged ratings are to be considered in order to reflect the changing level of severity of a disability during this period. Fenderson v. West, 12 Vet. App. 119 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The record shows that entitlement to service connection for lumbosacral strain with post operative disc repair at L5 to L7 was granted in an October 2006 Board decision. This decision was implemented by a November 2006 rating decision that assigned a noncompensable evaluation effective from the August 3, 2001 date of the Veteran's original claim. The evaluation was increased to the current 20 percent in a November 2008 rating decision, effective from September 23, 2008. A January 2010 rating decision changed the effective date for the 20 percent evaluation to the August 3, 2001 date of claim. A temporary total evaluation was assigned following surgery on October 27, 2010, and the current 20 percent rating was reassigned as of January 1, 2011. Thus, the Board must determine if at any time during the rating period on appeal (and excluding the period where the temporary total rating is in effect), an evaluation in excess of 20 percent is warranted for the Veteran's lumbar spine disability. The November 2006 rating decision evaluated the Veteran's low back disability under the rating code for intervertebral disc syndrome. This code is currently found at 38 C.F.R. § 4.71a, Code 5243. However, during the course of the Veteran's claim, the rating criteria for back disabilities were changed, effective on September 23, 2002. See 67 Fed. Reg. 54345- 54349 (August 22, 2002). Pursuant to governing legal precedent, when a new statute is enacted or a new regulation is issued while a claim is pending before VA, VA must first determine whether the statute or regulation identifies the types of claims to which it applies. If the statute or regulation is silent, VA must determine whether applying the new provision to claims that were pending when it took effect would produce genuinely retroactive effects. If applying the new provision would produce such retroactive effects, VA ordinarily should not apply the new provision to the claim. If applying the new provision would not produce retroactive effects, VA ordinarily must apply the new provision. See VAOPGCPREC 7- 03, 69 Fed. Reg. 25,179 (November 19, 2003), citing to Landgraf v. USI Film Products, 511 U.S. 244 (1994). In increased rating cases such as this one, where the rating criteria is amended during the course of the appeal, the Board considers both the former and the current schedular criteria because, should an increased rating be warranted under the revised criteria, that award may not be made effective before the effective date of the change. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991) (holding that, where a law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to appellant should and will apply unless Congress provides otherwise or permits the Secretary to do otherwise)); see also VAOPGCPREC 7-03; VAOPGCPREC 3-00, 65 Fed. Reg. 33,422 (April 10, 2000); 38 U.S.C.A. § 5110(g) (West 2002); 38 C.F.R. § 3.114 (2003). In this instance, the Board determines that applying the new provisions to the Veteran's claim would not produce any genuinely retroactive effects. Therefore, the Board must consider both the old and new regulations in this matter, keeping in mind that the new regulations cannot be applied prior to their effective dates. Under the version of the rating code for intervertebral disc syndrome in effect at the time of the Veteran's claim, a 20 percent rating is assigned for intervertebral disc syndrome which is moderate with recurring attacks, a 40 percent rating is warranted for intervertebral disc syndrome that is severely disabling with recurring attacks and intermittent relief, and a 60 percent evaluation is assigned for intervertebral disc disease which is pronounced with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief. 38 C.F.R. 4.71a, Code 5293 (2002). The Board notes that, under the old criteria, degenerative disc disease could also be evaluated under 38 C.F.R. 4.71a, Code 5292. This code assigned ratings based on limitation of motion in the lumbar spine. A 10 percent evaluation was warranted for slight limitation of motion, a 20 percent evaluation was warranted for moderate limitation of motion, and a 40 percent evaluation was warranted for severe limitation of motion. Effective September 23, 2002, Diagnostic Code 5293 was revised. The rater was to evaluate intervertebral disc syndrome under a formula for incapacitating episodes or by combining the orthopedic and neurologic manifestations along with the evaluations for all other service-connected disabilities, whichever resulted in a higher combined rating. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes states that for intervertebral disc syndrome manifested by incapacitating episodes having a total duration of at least six weeks during the past 12 months, a 60 percent evaluation is warranted; with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent evaluation is warranted; and with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent evaluation is warranted. Episodes of at least one week but less than two weeks are rated as 10 percent disabling. Effective on September 26, 2003, Code 5293 was renumbered and revised at 38 C.F.R. § 4.71a, DC 5243. The current rating criteria states that intervertebral disc syndrome is to be evaluated either under new general rating formula for diseases and injuries of the spine or under the formula for rating intervertebral disc syndrome based on incapacitating episodes. 38 C.F.R. § 4.71a, Code 5243. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes was unchanged from that enacted on September 23, 2002 and already described above. Note 1 of this Code provides that, for purposes of evaluations under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent evaluation is warranted for disability of the thoracolumbar spine when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted for disability of the thoracolumbar spine when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Forward flexion of the cervical spine to 15 degrees or less, or favorable ankylosis of the entire cervical spine is evaluated as 30 percent disabling. Unfavorable ankylosis of the entire cervical spine, or forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine warrants a 40 percent evaluation. An evaluation of 50 percent or greater requires favorable or unfavorable ankylosis. Unfavorable ankylosis is a condition with which the entire thoracolumbar spine is fixed in flexion or extension, resulting in several symptoms described in Note 5 of the general formula for diseases and injuries of the spine. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion is zero to 30 degrees, and left and right lateral rotation is zero to 30 degrees. The combined range of motion refers to sum of the forward flexion, extension, left and right lateral flexion, and left and right lateral rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2). Each range of motion measurement is to be rounded to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (4). There are additional considerations that apply to both the old and new versions of the regulation. The Board recognizes that the disability of the musculoskeletal system is primarily the inability due to damage or an infection in parts of the system to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. Factors to be considered include pain on movement, weakened movement, excess fatigability, and incoordination. 38 C.F.R. §§ 4.40, 4.45. Functional impairment due to pain must be considered. 38 C.F.R. § 4.59. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). The evidence of record includes the report of a VA general medical examination conducted in April 2002. On examination, there was no muscle wasting. There was slight tenderness to the right sciatica to palpation, and there was a laminectomy scar in the lumbosacral area. Range of motion was 95 out of 95 degrees of flexion; 30 out of 35 degrees of extension; 30 out of 40 degrees of lateral extension; and 30 out of 35 degrees of rotation. Straight leg raising was negative. The diagnosis was lumbosacral strain, and status post herniated disc repair. A June 2004 magnetic resonance imaging study (MRI) revealed an L4-S1 central disc bulge impressing the bilateral S1 nerve roots; a broad-based disc protrusion and bulge at L4-L5; and a suggestion of a previous laminectomy. VA treatment records from January 2007 include an assessment of chronic low back pain with a history of laminectomies. Another MRI was obtained in July 2007 due to the Veteran's reports of worsening pain. The impression was degenerative discopathy of the lumbar spine, being most severe at the L4-L5 level; central canal stenosis at the L2-L3 and L3-L4 levels; and bilateral neural foraminal stenosis with associated nerve impingement at the L4-L5, L5-S1 levels. A VA x-ray study obtained in February 2008 determined that there was no radiographic evidence of an acute fracture or dislocation of the lumbar spine. Discogenic degenerative changes of the lumbar spine associated with degenerative facet arthropathy was noted at L4-L5, as was degenerative arthrosis in the right sacroiliac joint. An August 2008 MRI also revealed degenerative disc operative, lumbar spine with central canal stenosis. The Veteran was provided with a VA examination of the spine in October 2008. He reported constant low back pain that had become progressively worse since his initial injury in 1963. He had a history of a laminectomy of the lumbar spine in 1982. He described a moderate degree of pain on a constant basis with radiation into each leg. The Veteran could not walk more than a few yards. There was no sphincter dysfunction or incontinence. On examination, there was no objective evidence of back spasm or weakness. His strength was 5/5 throughout. Pinprick was decreased throughout. There was no sensory loss, and deep tendon reflexes were 2 plus. There was no ataxia or tremors and the Veteran had normal gait. Further examination was negative for abnormal spinal curvatures, posture was normal, and the spine appeared normal. Range of motion was zero to 60 degrees of flexion with pain at 50 degrees. Extension was zero to 10 degrees, with pain at 10 degrees. Lateral flexion to the right was zero to 15 degrees; lateral flexion to the left was zero to 20 degrees; lateral rotation to the right was zero to 25 degrees; and lateral rotation to the left was zero to 30 degrees. Although the Veteran reported pain on movement, there was no additional loss of motion on repetitive use for any of the measured movements. The diagnoses included degenerative disc disease of the lumbar spine. His disability prevented him from participating in exercise or sport, and had moderate to no effect on his remaining activities. VA treatment records from 2007 to 2009 indicate that the Veteran underwent physical therapy and acupuncture due to chronic pain from his back disability. However, in July 2009 he reported that therapy had worsened his pain, and that acupuncture had not been helpful. A May 2008 functional capacity assessment from the SSA states that the Veteran's primary diagnoses were lumbago and cervicalgia. He was limited to occasionally carrying up to 20 pounds and frequently carrying up to 10 pounds. He could stand, walk, or sit for up to six hours a day. Pushing and pulling was unlimited. The examiner reviewed the Veteran's medical records and noted that serial examinations revealed a normal gait, normal strength, no bowel or bladder incontinence, and a full range of motion. The examiner determined that the level of severity of the Veteran's subjective symptoms were not totally consistent with or supported by the objective findings. He remained capable of functioning within the limits described by the assessment. Private medical records show that the Veteran underwent surgery for a laminectomy with in-situ fusion due to severe stenosis on October 27, 2010. The recovery was expected to take six to eight weeks. The Veteran's most recent VA spine examination was conducted in March 2012. The diagnosis of his disability was lumbar degenerative disc disease. The Veteran did not experience flare-ups that impacted the functioning of his back. On examination with the use of a goniometer, he had forward flexion to 60 degrees; extension to 10 degrees; right and left lateral flexion to 10 degrees; and right and left lateral rotation to 10 degrees. There was objective evidence of painful motion throughout the range (i.e., beginning at zero degrees), but nevertheless the Veteran was able to perform repetitive use testing without any additional limitation of range of motion. The Veteran had less movement than normal, pain on movement, and disturbance of locomotion. He also had tenderness, guarding or muscle spasm, and an abnormal gait. Radicular symptoms were noted in the lower extremities, particularly on the right, but there were no other neurologic abnormalities. The Veteran had experienced incapacitating episodes during the last year, totaling at least one week but less than two weeks. After careful consideration of the Veteran's contentions, the medical evidence, and the various rating criteria, the Board finds that entitlement to an evaluation in excess of 20 percent is not warranted for any portion of the period on appeal under any of the applicable rating codes. The Veteran has never displayed greater than moderate intervertebral disc syndrome as described by 38 C.F.R. 4.71a, Code 5293 (2002). The April 2002 VA examination noted only slight tenderness of the sciatic area on palpation and straight leg raising was negative. In October 2008, the examiner described the Veteran's pain as moderate. There was no objective evidence of back spasm, weakness, loss of strength, sensory loss, and or loss of deep tendon reflexes. The Veteran displayed additional symptoms on the March 2012 examination, at which time his functional losses were described as less movement than normal, pain on movement, and disturbance of locomotion. He also had tenderness, and guarding or muscle spasm that produced an abnormal gait. However, these factors alone have not resulted in either severe or pronounced intervertebral disc syndrome, as there was no objective evidence of painful motion with any of these movements, no periods of flare-ups, and no additional neurological abnormalities. The Veteran is in receipt of compensation for radiculopathy of the lower extremities as of the date of the March 10, 2012 examination, and these symptoms may no longer be considered when evaluated his disability under this rating code. See 38 C.F.R. § 4.14. The effects of pain, weakness, incoordination and fatigability have been considered, but every examination was negative for additional disability due to these factors. 38 C.F.R. §§ 4.40, 4.45, 4.59. Finally, it bears noting that the May 2008 SSA examiner determined that the level of severity of the Veteran's subjective symptoms were not totally consistent with or supported by the objective findings. When all factors have been considered, the Board finds that the Veteran's symptoms more nearly resemble those of moderate intervertebral disc syndrome. 38 C.F.R. § 4.7, (2012); 38 C.F.R. § 4.71a, Code 5293 (2002). The previous rating criteria for limitation of motion have also been considered, but these also fail to provide a basis for an evaluation higher than 20 percent. The Veteran's motion of the lumbar spine was measured as normal or very nearly normal in April 2002. The May 2008 assessment from SSA described the Veteran's examinations as showing full range of motion. He has retained at least 60 degrees of forward flexion on every additional examination. Furthermore, repetitive use did not reduce his range of motion due to pain, weakness, incoordination or excess fatigability on any of the examinations. Based on these factors, the Board finds that the Veteran has not demonstrated more than moderate limitation of motion during any portion of his appeal. 38 C.F.R. § 4.71a, Code 5292 (2002); 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012). The current rating criteria also fail to support entitlement to an increased evaluation under either the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes or the General Rating Formula for Diseases and Injuries of the Spine. The March 2012 VA examiner found that the Veteran had incapacitating episodes as defined by VA regulation during the previous 12 months. However, these episodes lasted a total of at least one week but less than two weeks, which is less than the four weeks of incapacitation required for a rating of more than 20 percent under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, Code 5243. With respect to the General Rating Formula, limitation of forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine is required for a higher evaluation. This was not demonstrated on any examination of record, and again it must be noted that there were no additional limitations due to pain, weakness, fatigability or incoordination demonstrated on any examination. An evaluation of greater than 20 percent is not warranted. 38 C.F.R. §§ 4.40, 4.59, 4.71a, Code 5243. At this juncture, the Board acknowledges that Note (1) of the General Rating Formula states that any associated objective neurologic abnormalities are to be evaluated separately under an appropriate rating code. This was accomplished in an October 2012 rating decision, which assigned 11 separate evaluations for radiculopathy of various nerves of the lower extremities associated with the lumbar spine disability. The examinations have been negative for any other abnormalities such as bowel or bladder impairment. See General Rating Formula for Diseases and Injuries of the Spine, Note (1), 38 C.F.R. § 4.71a, Code 5243. Consideration has also been given regarding whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Under Secretary for Benefits or to the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2011); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record). In determining whether an extra-schedular evaluation is for consideration, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must next consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-16. When those two elements are met, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. The schedular evaluation in this case is not inadequate. The schedular criteria adequately describe the Veteran's symptoms for his low back disability. These symptoms include limitation of motion and pain, all of which are provided for in the rating criteria. The Board observes that the Veteran is already considered to be totally impaired and is in receipt of a 100 percent evaluation based on a separate disability. Accordingly, referral for consideration of an extra-schedular rating is not warranted. ORDER Entitlement to an initial evaluation in excess of 20 percent for lumbosacral strain with post-operative herniated disc repair at L5-7 and degenerative disc disease is denied. REMAND In the December 2011 remand, the Board requested that the Veteran be afforded a VA examination of his bilateral Achilles tendonitis. The examiner was specifically requested to consider additional impairment due to pain on use, weakness, excess fatigability or incoordination when stating whether the Veteran's disabilities were slight, moderate, moderately severe, or severe. Unfortunately, the examination report does not discuss these factors, and there is no other indication that they were considered. The Board is obligated by law to ensure that the RO complies with its directives, as well as those of the Court. Therefore, the Veteran must be scheduled for a new examination that addresses all relevant criteria and symptomatology. Stegall v. West, 11 Vet. App. 268 (1998). The December 2011 remand also directed that the Veteran be afforded an examination of his digestive system in order to determine the nature and etiology of his claimed gastroenteritis. The examiner was requested to provide opinions as to whether or not the claimed gastroenteritis was caused or aggravated by the Veteran's service connected major depressive disorder or by any of the medications he takes for other service connected disabilities. The Veteran was afforded a VA examination of his stomach in March 2012. The examiner answered the questions posed by the December 2011 remand, and opined that the Veteran's currently diagnosed gastroenteritis was not caused or aggravated by his service connected disabilities. Unfortunately, the examiner concluded his rationale with the following statement: "Furthermore, gastroenteritis is usually an acute condition that resolves with time. The gastrointestinal condition he has is more of a chronic one ongoing for years which has not been diagnosed." This statement raises additional questions that must be addressed. While the Veteran has long claimed service connection for gastroenteritis, he is not a trained physician, and is not competent to make a diagnosis of his own disability. His claim may not be limited to the diagnosis of gastroenteritis, but must include the chronic undiagnosed gastrointestinal condition noted by the March 2012 examiner. Therefore, the Veteran must be scheduled for an additional examination in order to attempt to make a diagnosis of this disability and to determine whether or not it is related to service or to a service connected disability. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination of his bilateral Achilles tendonitis. The claims folder must be provided to the examiner for use in the study of this case, and the examination report should note that it has been reviewed. All indicated tests and studies should be conducted. The examiner must note whether or not there is pain on use, weakness, excess fatigability, or incoordination on repetitive use. Whether or not the Veteran experiences flare-ups and any additional impairment during those periods must also be noted. At the conclusion of the examination and review of the record, the examiner must consider all of these factors and provide an opinion for each foot as to whether the overall disability picture is best equated with slight, moderate, moderately severe, or severe foot injury, and whether the foot is so affected by disability that no effective function remains other than that which would be equally well served by an amputation stump and suitable prosthetic appliance. 2. Schedule the Veteran for a VA examination of his gastrointestinal complaints. The claims folder must be provided to the examiner for use in the study of this case, and the examination report should note that it has been reviewed. All indicated tests and studies should be conducted. At the completion of the examination and review of the medical record, the examiner should attempt to express the following opinions: a) Does the Veteran have a current chronic gastrointestinal disability? If so, what is the diagnosis of this disability? b) If the Veteran does not currently have a chronic gastrointestinal disability, has he had a diagnosis of a gastrointestinal disability at any time since August 2001? c) For each gastrointestinal disability that the Veteran currently has or has had since August 2001, please provide these additional opinions: i) Is it as likely as not that this disability was incurred due to active service? ii) Is it as likely as not that this disability was incurred due to the Veteran's service connected depressive disorder, or due to the medications he takes for his service connected disabilities? iii) If this disability was not incurred due to a service connected disability, is it as likely as not that it was aggravated (permanently increased in severity beyond natural progression) by a service connected disability? If yes, is it possible to identify the baseline level of severity before aggravation? If it is possible, than please describe the baseline level as well as the current symptomatology. Please provide the reasons and bases for all opinions. If the examiner finds that they are unable to provide the requested opinion without resort to speculation, the reasons and bases for that opinion should also be provided. Any missing evidence that might enable the examiner to supply the requested opinion should be identified. 3. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the Veteran and representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The Veteran 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). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs