Citation Nr: 1316952 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 08-12 904 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an initial compensable rating for a cervical strain between June 1, 2005 and April 20, 2010. 2. Entitlement to an initial compensable rating for a right shoulder strain. 3. Entitlement to an initial compensable rating for residuals of a concussion. 4. Entitlement to an initial compensable rating for residuals of a sprained right second toe. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served on active duty from May 1987 to June 1991; from May to August 1994; from January to October 2003; and from June 2004 to May 2005. He also served in the reserves. These matters come to the Board of Veterans' Appeals (Board) on appeal from an July 2006 rating decision by the Regional Office in Cleveland, Ohio. The case was certified to the Board by the Pittsburgh, Pennsylvania RO. In March 2009, the Veteran testified before the undersigned at the Pittsburgh, Pennsylvania Regional Office. A transcript of that hearing is of record. In February 2012, the Board, inter alia, denied entitlement to an initial compensable rating for a cervical strain between June 1, 2005 and April 20, 2010, as well as entitlement to an initial compensable rating for a right shoulder strain. The appellant appealed those decisions to the United States Court of Appeals for Veterans Claims. In August 2012, the Court granted a joint motion for remand. In February 2012, the Board, in pertinent part, remanded the issues of entitlement to initial compensable ratings for residuals of a concussion, and a sprained right second toe for further development. The development ordered, however, has yet to be conducted. As such, those matters must again be REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Between June 1, 2005 and April 20, 2010, the Veteran's cervical strain was not manifested by either forward cervical flexion less than 40 degrees, or a combined range of cervical motion less than 335 degrees, or by cervical muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 2. The Veteran's right shoulder strain has been manifested by shoulder pain, but not by shoulder motion limited to midway between the side and shoulder level the shoulder level. CONCLUSIONS OF LAW 1. The criteria for the assignment of a compensable rating for the a cervical strain between June 1, 2005 and April 20, 2010 were not met. 38 U.S.C.A.§§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R.§§ 3.159, 3.321(b) (1), 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a Diagnostic Code 5243 (2012). 2. The criteria for an initial 10 percent rating for a right shoulder strain, but not more, are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As service connection, initial ratings, and effective dates have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. He was provided the opportunity to present pertinent evidence and testimony. In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Of note, the AMC in October 2009 and June 2010 attempted to obtain the records or authorization forms requested by the Board from the Veteran. The Veteran did not respond. VA's duty to assist the Veteran in his claims by making reasonable efforts to obtain relevant records not in the custody of a Federal department or agency. 38 C.F.R. § 3.159(1). Corresponding to VA's duty to assist is a duty on the Veteran's part to cooperate with VA in developing a claim. 38 C.F.R. § 3.655; see Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that "[t]he duty to assist is not always a one-way street"). Hence, the Board finds no further development warranted, and that the examinations provided to the Veteran are adequate and meet the standards provided in the October 2009 remand. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Laws and Regulations-Increased Ratings Generally Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule). Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple (staged) ratings may be assigned for different periods of time during the pendency of the appeal. Fenderson v. West, 12 Vet. App. 119 (1999). The analysis in this decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 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 innervations, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Rating factors for a disability of the musculoskeletal system included functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in 38 C.F.R. § 3.321 an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as a marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The Board has reviewed all the evidence in the Veteran's claims file and in his Virtual eFile. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000), and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Laws and Regulations-Cervical Disorder Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent disability rating is warranted upon evidence of cervical forward flexion greater than 30 degrees but not greater than 40 degrees or combined range of cervical motion greater than 170 degrees but not greater than 335 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 disability is warranted where there is evidence of cervical forward flexion greater than 15 degrees but not greater than 30 degrees; or the combined range of cervical motion not greater than 170 degrees; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a. As the Veteran is not service connected for an intervertebral disc syndrome, there is no need to address regulations pertaining to that disorder. Under the rating criteria separate ratings can be provided for neurological disorders associated with disorders of the spine under 38 C.F.R. § 4.124a. Neurological disorders associated with the Veteran's cervical disability are not demonstrated by the evidence of record and therefore will not be discussed in the analysis below. VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. The Court has held that a higher rating can be based on "greater limitation of motion due to pain on use." DeLuca, 8 Vet. App. at 206. Significantly, however, the general rating formula for cervical disorders is controlling because VA must follow its own regulations. Browder v. Derwinski, 1 Vet. App. 204, 205 (1991). The provisions of 38 C.F.R. § 4.71a specifically require that cervical disorders are to be rated under the prescribed criteria with or without symptoms such as pain (whether or not the pain radiates), with or without stiffness, and with or without aching in the area of the spine affected by residuals of injury or disease. Simply put, the presence of pain is already taken into account in the formula. 68 Fed.Reg. 51454-5 (Aug. 27, 2003) ("Pain is often the primary factor limiting motion, for example, and is almost always present when there is muscle spasm. Therefore, the evaluation criteria provided are meant to encompass and take into account the presence of pain, stiffness or aching, which are generally present when there is a disability of the spine.") (emphasis added). The Board acknowledges that the Court in Cullen v. Shinseki, 24 Vet. App. 74, 85 (2010), held that the Board must discuss any additional limitations a claimant experiences due to pain, weakness or fatigue. The obligation to discuss, however, is not an obligation to ignore the clear language of the controlling general rating formula. Factual Background and Analysis-Cervical Disorder A July 2005 VA general medical examination noted the Veteran's assertion that he had pain when he turned his head, particularly to the right, and when he used his right shoulder. There were no flare-ups nor was subluxation, locking or stiffness reported. Physical examination revealed that the cervical spine had a correct alignment. There were no obvious deformities, no swelling or redness, no tenderness to palpitation. Forward flexion, backward extension, and lateral flexion were to 0 to 45 degrees. Rotation was from 0 to 80 degrees bilaterally with pulling on the right. There was no evidence of weakness, palpable muscle spasms on repetitive motion, decreased endurance or easy fatigability found with repetitive range of motion. There was no further limitation of motion with repetition. Tenderness was the most limiting factor. The Veteran did not use an assistive devices or experience significant pain at the time of the examination, and he denied flare-ups. The examiner did not find that cervical pain radiated to the extremities. X-ray of the cervical spine revealed normal findings. In a June 2006 VA medical center treatment note, the Veteran reported cervical pain without radioculopathy. At a January 2007 VA medical center treatment session the Veteran noted decreased cervical pain with the use of Estim and exercise. Motor strength was 5 out of 5 bilaterally. During his March 2009 Board Hearing, the Veteran testified that he had not had a pain free day since he injured his back. He explained that he was limited in his ability to do many things he had done before his injury. He explained that lifting and sitting caused his back to ache. The Veteran's wife added that the appellant constantly complained about his back and that he went to work when he should have stayed home due to back pain. A May 2009 VA medical center acupuncture note reported the Veteran's complaints of neck pain. Physical examination revealed mild paraspinal muscle tenderness. A diagnosis of myofascial back pain was provided. At an April 2010 VA orthopedic examination the examiner noted that the Veteran reported a 2/10 dull midline aching pain. There were no incapacitating episodes due to pain, and there was no evidence of physician prescribed bed rest. There was no evidence of radioculopathy into the arms. Further, there were no flare-ups, stiffness, fatigue, parethesias, problems with hand weakness, and no interference with activities of daily living or employment was demonstrated. Cervical forward flexion and extension were from 0 to 45 degrees, lateral flexion was from 0 to 45 degrees bilaterally, and lateral bilateral rotation from 0 to 80 degrees. There was some midline tenderness over the low cervical spine but there was no muscle spasm. Cervical lordosis was maintained. Bilateral upper extremities had 5/5 strength and light touch sensation was equal bilaterally, reflexes were 2+ and equal bilaterally. The Veteran could perform all daily activities of living without difficulty, and his neck disorder was not found to interfere with his job. There was no cervical ankylosis present nor was there intervertebral disc syndrome. X-rays were normal. In this case, the preponderance of the evidence is against assigning a compensable disability rating for his cervical disorder between June 1, 2005 and April 20, 2010. During this period, the Veteran's range of cervical motion was consistently normal, ranging from 0 to 45 degrees, i.e., outside of minimum requirements for a 10 percent disability rating. Muscle spasms have not been shown nor has guarding. Localized tenderness or vertebral body fracture with loss of 50 percent or more of the height was not demonstrated by the evidence of record for this period. Further neither cervical ankylosis, a cervical intervertebral disc syndrome nor residual neurological symptoms were demonstrated. Accordingly, a compensable disability rating for the Veteran's cervical spine disability for this period is not warranted. While the Board has considered the decision in DeLuca the evidence of record preponderates against finding that the Veteran has pain, fatigability, incoordination, and other such symptoms that are not contemplated by the current disability evaluations. Indeed, both the July 2005 and April 2010 examinations found no evidence of weakness or fatigue. In addition, the July 2005 examination found no evidence of muscle spasms, and the April 2010 examination found the appellant able to perform all daily activities. Hence, even when considering DeLuca as well as Cullen, the Board finds no basis for assigning a compensable rating. In denying a compensable rating the Board considered the holding in Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), that the provisions of 38 C.F.R. § 4.59 are not limited to cases involving arthritis. The Board acknowledges that 38 C.F.R. § 4.59 specifically provides that, "It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for a joint." The Board, however, is compelled to conclude that the specific, plain and unambiguous meaning of 38 C.F.R. § 4.71a controls and must be followed. This is not a matter where the regulation is ambiguous. Ambiguous regulations are to be resolved in the veteran's favor. Brown v. Gardner, 513 U.S. 115 (1994). Rather, this is a matter where the specific regulation, 38 C.F.R. § 4.71a, trumps the general regulation, 38 C.F.R. § 4.59. Beverly v. Nicholson, 19 Vet.App. 394, 402 (2005) (acknowledging that general "cannon of interpretation that the more specific trumps the general"). The provisions of 38 C.F.R. § 4.71a, specifically pertain to the rating to be assigned a cervical disorder. Those provisions clearly state that cervical disorders are to be rated under the prescribed criteria with or without symptoms such as pain (whether or not the pain radiates), with or without stiffness, and with or without aching in the area of the spine affected by residuals of injury or disease. As noted previously, the presence of pain is already taken into account in the formula. 68 Fed.Reg. 51454-5 (Aug. 27, 2003) ("Pain is often the primary factor limiting motion, for example, and is almost always present when there is muscle spasm. Therefore, the evaluation criteria provided are meant to encompass and take into account the presence of pain, stiffness or aching, which are generally present when there is a disability of the spine.") As such, the Board finds that 38 C.F.R. § 4.59 does not provide a basis to assign a compensable rating. Finally, the Board considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Shinseki, 573 F.3d 1366 (Fed. Cir. 2009). There is no evidence that the disability picture presented is not contemplated by the rating schedule. Thus, the Board finds no evidence to indicate referral for extraschedular consideration. Id. Laws and Regulations-Right Shoulder Strain Disabilities of the shoulder and arm are rated under Diagnostic Codes 5200 through 5203. A distinction is made between major (dominant) and minor upper extremities for rating purposes. In the instant case, examination reports reflect the Veteran is left-handed, which means his right shoulder is his minor shoulder. The RO assigned the initial evaluation under Diagnostic Code 5201 based on a limitation of motion. Diagnostic codes 5200, 5202 and 5203 will not be discussed here as the Veteran has not demonstrated such pathology as ankylosis or impairment of the humerus, clavicle or scapula such that would merit consideration under these additional codes. See 38 C.F.R. § 4.71a. Diagnostic Code 5201 provides that motion limited to the shoulder level warrants a 10 percent disability rating, and motion limited to midway between the side and shoulder level warrants a 20 percent rating for the minor arm. A limitation of motion to 25 degrees from the side warrants a 30 percent rating for the minor arm. 38 C.F.R. § 4.71a, Diagnostic Code 5201. The Veteran presently is assigned a noncompensable disability evaluation, as the record does not show the symptoms necessary for a higher rating under other diagnostic codes regarding shoulder disabilities. Hence, the only potential bases for a higher rating is demonstration of a limitation to the shoulder. See Diagnostic Code 5202. The normal range of motion for abduction for the shoulder is 0 to 90 degrees on internal and external rotation. See 38 C.F.R. § 4.71a, Plate I. Factual Background and Analysis-Right Shoulder Strain The Veteran was examined in July 2005 in a VA general medical examination during which he reported that any lifting caused severe, right shoulder pain. He also reported sharp pain and aching with abduction. The Veteran experienced stiffness when reaching overhead but no subluxation or locking to that shoulder. The Veteran was found to have good grip and no right shoulder weakness. Physical examination revealed flinching when the examiner palpated to the anterior aspect of the right shoulder. There was no palpable muscle spasm on repetitive range of motion. Forward flexion was from 0 to 90 degrees with increased discomfort at 90 degrees. Abduction was from 0 to 90 degrees with discomfort at 90 degrees. The Veteran was noted to be left-handed. There was no weakness, decreased endurance, or easy fatigability with repetitive range of motion. The shoulders were equal in height and there was no obvious deformity, swelling, or redness noted. In March 2009, the Veteran testified during his Board Hearing that, due to shoulder pain, he was unable to work on his car as he once had and experienced difficulty pushing and sliding doors at work. He explained that he was no longer able to perform upper body exercises, or work on his house due to his shoulder pain. He stated that he was unable to lift his arms above shoulder level on occasion. A May 2009 VA medical center acupuncture note reported the Veteran's complaints of pain around the right shoulder blade with shoulder movement. During an April 2010 VA orthopedic examination, it was noted that the Veteran had pain on the lateral aspect of the shoulder which was worse with overhead activities. The Veteran reported that his pain level was about a 4 or 5 out of 10 with 10 being the worse. There was no instability, weakness or stiffness. There were no signs of inflammation, swelling, heat or redness. There were no flare-ups. The Veteran was limited in that he was not physically as active as he would like to be but otherwise the shoulder did not interfere with his activities of daily living. With overhead activity, the Veteran fatigued after about thirty minutes. Range of motion studies found forward flexion from 0 to 180 degrees, and external and internal rotation were from 0 to 90 degrees. X-rays of the right shoulder were normal. There was no fatigue, incoordination, weakness, pain or instability on repetition of movement. In this case, as no limitation of motion is shown, a compensable evaluation is not in order under Diagnostic Code 5201. 38 C.F.R. § 4.71a. As noted above, however, the provisions of 38 C.F.R. § 4.59 do provide that the intent of the rating schedule is to assign a compensable rating for joints that are actually painful. Unlike the specific guidance set forth for cervical disorders in 38 C.F.R. § 4.71a, there is no similar guidance for shoulder disorders. Therefore, while there is no evidence that the appellant's right shoulder pain causes fatigue, incoordination, weakness or instability, even with repetitive movement, the Board will assign a 10 percent rating under 38 C.F.R. § 4.59, DeLuca, and the doctrine of reasonable doubt. While the Board grants a 10 percent rating for the appellant's right shoulder strain, the Board finds no evidence showing that right shoulder motion at any time has objectively been limited to midway between the side and shoulder level. As such, the Board finds that a 20 percent rating is not in order. The symptoms presented by the Veteran's right shoulder disorder are fully contemplated by the rating schedule. There is no evidence his disability picture is exceptional when compared to other veterans with the same or similar disability. There is no evidence that at any time during the appellate term that the Veteran's right shoulder disorder necessitated frequent hospitalization, or caused a marked interference with employment. In fact, the April 2010 VA examiner explained that the Veteran's shoulder did not significantly affect his ability to function at work or at home. Thus, the Board finds no evidence warranting a referral of this claim for extraschedular consideration. Thun. ORDER Entitlement to a compensable rating between June 1, 2005 and April 20, 2010 for a cervical strain is denied. Entitlement to an initial 10 percent rating for a right shoulder strain is granted subject to the laws and regulations governing the award of monetary benefits. REMAND In February 2012, the Board, in pertinent part, remanded the issues of entitlement to initial compensable ratings for residuals of a concussion, and a sprained right second toe. The development ordered in that remand has yet to be accomplished. The Board is obligated by law to ensure that the AMC complies with the Board's directives. Where the Board's remand orders are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall. Accordingly, those matters must again be remanded for appropriate action. In this regard, the question of entitlement to a compensable rating for residuals of a sprained right toe was initially remanded in October 2009, in part so that the Veteran could be afforded an orthopedic examination to determine the nature and severity of his right second toe disorder. The Veteran was afforded and orthopedic examination in accordance with the remand instructions in April 2010, however, the VA examiner did not examine the right second toe. Accordingly, further development is required. Regarding the issue of entitlement to a compensable rating for residuals of a concussion, in its initial July 2006 rating decision, the RO granted the Veteran service connection with a noncompensable disability rating for a disorder characterized as a "history of concussion." It was noted that the Veteran was rated under 38 C.F.R. § 4.124a, Diagnostic Code 8045, which, at that time provided a 10 percent disability rating, and no more, under diagnostic code 9304 (dementia due to head trauma) for purely subjective complaints such as headaches. In a March 2011 rating decision, the Appeals Management Center granted a 10 percent disability rating for "chronic headaches, residuals of concussion." It was noted that the Veteran's disability evaluation was considered under Diagnostic Code 8045, the diagnostic code for rating residuals of head trauma and Diagnostic Code 8100, the diagnostic code used for rating migraines. In the rating decision, it is clear, however, that, essentially, the Veteran was granted a 10 percent disability rating based entirely on the type and frequency of the Veteran's headaches and thus under Diagnostic Code 8100 alone. Significantly, included in the evidence of record is a letter from private physician Dr. T.F. which states that the Veteran had a severe case of "posttraumatic migraine." See October 2007 Correspondence, Dr. T.F. The evidence of record also contains a July 2010 VA Traumatic Brain Injury examination in which the examiner stated that the Veteran's headaches appeared to be related to a neck pain or injury. The examiner further suggested that, despite findings that the Veteran greatly exaggerated his symptoms on examination, some of his cognitive difficulties were due to in-service head trauma. Notably, after the Veteran made his claim for a disorder in association with a head injury, the criteria for evaluating residuals of traumatic brain injury were revised. These revisions, however, apply only to applications for benefits received by VA on or after October 23, 2008. 73 Fed. Reg. 54693 (Sept. 23, 2008). The new regulation provides, however, that a veteran "whose residuals of [a traumatic brain injury] are rated under a version of 38 C.F.R. § 4.124a, diagnostic code 8045, in effect before October 23, 2008 may request review under diagnostic code 8045." Here, the Veteran at his October 2009 hearing suggested that he experienced cognitive difficulty to include memory loss following his in-service head injury. Thus, the Board finds that the Veteran has expressed a desire to have his post-concussion symptoms considered under the revised Diagnostic Code 8045. The Board is not competent to make medical determinations. Colvin v. Derwinski, 1 Vet. App. 171 (1991). Presently, the evidence before the Board suggests that the Veteran's headaches are either the result of a traumatic brain injury, or are secondary to his cervical spine disorder. The Veteran is presently rated for headaches secondary to a concussion rather than a cervical spine disorder and that the issue before the Board is stated broadly as residuals of a concussion. Where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Here, the origin of the Veteran's headaches and any cognitive disorder relate to one another in regards to the appropriate disability ratings. Accordingly, the Board is unable to make a determination regarding either issue until further findings regarding the relationships, if any, between all or any of the Veteran's cervical spine disability, his headaches, his in-service head traumas and his cognitive functions are made. Accordingly, the case is REMANDED for the following action: 1. The RO must take appropriate action to secure any and all pertinent records which have been identified but not previously secured for inclusion in the claims file. All attempts to secure this evidence must be documented in the claims file. If the AMC/RO cannot locate such records, the AMC/RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The AMC/RO must then: (a) notify the Veteran of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The Veteran must then be given an opportunity to respond. 2. Thereafter, the AMC/RO should schedule the Veteran for a VA orthopedic and neurological examinations. The claims folder, access to Virtual VA and a copy of this REMAND are to be made available for the examiners to review. a) In accordance with the latest worksheet for rating foot disorders, the physician is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and severity of his right second toe disorder. The examiner is to address whether there is objective evidence of severe painful motion or weakness in the affected extremity. b) After reviewing the claims file a VA neurologist must address whether the Veteran's headaches are attributable to either his cervical spine disability or, his in-service traumatic head injuries if such a determination is ascertainable. i) If it is at least as likely as not that the Veteran's headaches are due to the service-connected spine disability, the examiner is asked to provide a detailed review of the appellant's pertinent medical history, current complaints, and the nature and severity of the headaches in accordance with the latest worksheet for neurological disorders. ii) If the Veteran's headaches are due to head trauma sustained in service, the examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and severity of the headaches in accordance with the latest worksheet for Traumatic Brain Injury. 2. Concerning whether the Veteran has or has had since June 1, 2005 any cognitive defects secondary to in-service head trauma the neurologist is to provide a detailed review of the appellant's pertinent medical history, current complaints, and the nature and severity of any cognitive disorder or any other disorder associated with an in-service head trauma in accordance with the latest worksheets for residuals of a traumatic brain injury. A complete rationale for all opinions expressed must be provided. The examiners are to specifically address the head traumas incurred by the Veteran prior to and after his military service and, if possible, to determine the extent to which any current disability is due to post-service injuries. 3. The AMC/RO must notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2012). 4. The AMC/RO must ensure that all examination reports are in complete compliance with the directives of this remand. If any report is deficient in any manner, the AMC/RO must implement corrective procedures at once. 5. After ensuring that the duty to assist has otherwise been fulfilled, the RO must readjudicate the remaining issues on appeal. If any benefit sought is not granted, the Veteran and his representative must be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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). ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs