Citation Nr: 1319788 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 07-32 893 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a disability claimed as left leg pain. 2. Entitlement to a disability rating greater than 10 percent for lumbosacral strain. 3. Entitlement to a disability rating greater than 10 percent for a left ankle disability. 4. Entitlement to a disability rating greater than 10 percent for a right ankle disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran served on active duty from August 1990 to February 1996. This matter comes before the Board of Veterans' Appeals (Board) from an August 2007 RO decision. The Veteran presented sworn testimony in support of his appeal during a February 2011 hearing before the undersigned Acting Veterans Law Judge. In August 2011, the Board reopened a previously-denied claim for entitlement to service connection for a left leg disability and remanded the matters on the title page of this decision for further evidentiary development, to include obtaining Social Security records, and providing the Veteran with pertinent VA examinations for the purpose of obtaining an informed medical opinion as to any nexus between a current left leg disability and the Veteran's period of active service. Such development has been accomplished to the extent possible without the cooperation of the Veteran, as discussed further below. The Veteran contends that he is rendered unemployable by his service-connected disabilities, in particular, by his low back pain. In Rice v. Shinseki, the Court held that a total disability based upon individual unemployability claim cannot be considered separate and apart from an increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). Instead, the Court held that an unemployability claim is an attempt to obtain an appropriate rating for a service-connected disability. The Court also found in Rice that, when entitlement to a total disability claim is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. However, the record in this case reflects that the RO denied a total disability rating based upon individual unemployability in December 2008, during the time frame that the instant appeal was pending. The Veteran did not express disagreement with this denial. The Board therefore holds that the unemployability aspect of the Veteran's increased rating claim has been addressed by the RO and no further action on this basis is warranted. As with any increased rating claim, however, the Veteran is advised that he may file a claim for the total disability benefit at such time as he can submit or identify evidence supporting the claim. The issue of entitlement to a disability rating greater than 10 percent for lumbosacral strain 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. FINDINGS OF FACT 1. The Veteran failed, without good cause, to report for a scheduled VA examination in conjunction with his reopened claim for service connection for left leg disability. 2. The Veteran's bilateral ankle disabilities involving pain, swelling, and some reported instability are no more than moderate in nature. CONCLUSIONS OF LAW 1. The reopened claim for service connection for a left leg disability is denied on the basis of failure to report for a VA medical examination. 38 U.S.C.A. § 501 (West 2002); 38 C.F.R. § 3.655(b) (2012). 2. A disability rating greater than 10 percent is not warranted for disability affecting the right and left ankles throughout the appear period. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.2, 4.7, 4.10, 4.40, 4.45, 4.71, 4.71a, Diagnostic Code 5271 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Standard of review Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C.A. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board must consider all the evidence of record and discuss in its decision all "potentially applicable" provisions of law and regulation. See 38 U.S.C. § 7104(a); Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). The Board is also required to provide a statement of reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for its decision, as well as to facilitate further appellate review. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert, 56 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Duties to notify and assist When an application for benefits is received, VA has certain notice and assistance requirements under the law. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). First, proper notice must be provided to a claimant before the initial VA decision on a claim for benefits and must: (1) inform the claimant about the information and evidence not of record necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The VA is also required to inform the Veteran of how the VA assigns disability ratings and effective dates. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided with this information in a May 2007 letter prior to the initial RO decision in this case. With regard to the VA examination reports which are of record, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations obtained in this case are adequate with regard to the increased rating issues decided herein. The examination reports relied upon herein were predicated on a review of the claims folder and the relevant medical records contained therein, except where noted; contain a description of the history of the disability at issue; and document and consider the Veteran's complaints and symptoms. The examiner considered the available pertinent evidence of record, and provided a rationale for the opinions rendered, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). As discussed below, the Veteran failed to report for a scheduled VA examination, which was deemed to have been pertinent to his claim for service connection. Absent his cooperation, however, the Board finds that the VA has fulfilled its duty to assist him in this matter to the extent possible. "The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If the Veteran wished to fully develop his claim, he had a corresponding duty to assist by reporting for the scheduled examination or by presenting good cause for why he could not do so. The Board therefore holds that the duty to assist is not unlimited; even though the Veteran's claim has not been fully developed, the VA has fulfilled its duty to assist him to the extent possible. Service treatment records, VA treatment records, private medical records, Social Security disability records, and VA examination reports have been obtained and reviewed in support of the Veteran's claim. All relevant records and contentions have been carefully reviewed. The Board therefore concludes that the VA's duties to notify and assist have been met with regard to the matters decided herein. Service connection claim During the February 2011 hearing on appeal, the Veteran testified that he believes he has sciatica affecting his left leg which has its origin in his service-connected lumbar spine disorder. In other words, his claim is one of secondary service connection for a left leg disability related to his low back disorder. For the explicit purpose of identifying whether the Veteran has a left leg disability involving sciatica or any other radiating pain related to his low back disorder, the Board ordered a VA examination. An August 2011 letter from the Appeals Management Center reflects that the Veteran was informed that he would be scheduled for an examination, and that if he could not keep the appointment he was given, he should contact the VA Medical Center as soon as possible. This letter also informed him that the examination would not be rescheduled unless he presented good cause, such as an illness or hospitalization, death of a family member, etc. The record reflects that the Veteran was notified of the scheduled examination in the usual way, by letter generated at the VA Medical Center and mailed to his address of record. He failed to report for the examination, however. After the Veteran had missed the examination, an employee of the Appeals Management Center attempted to contact the Veteran by phone. According to the report of contact, the employee called the Veteran's grandmother, who informed that the Veteran "had not been around" and that she did not know how to locate him other than at his mother's phone number. When the employee called the Veteran's mother's phone, however, someone answered and then hung up the phone, apparently not wishing to speak with the VA employee. The Board observes that this inability to reach the Veteran by phone is merely one incident in a much larger pattern reflected in the Veteran's claims file. Records from the Social Security Administration reflect the difficulty and lack of success the employees of that Administration experienced in attempting to reach the Veteran upon multiple occasions. Similarly, VA medical records reflect the difficulties his own caregivers have in reaching him. It is the responsibility of the Veteran to keep the VA apprised of his current address and phone number, and it is his responsibility to respond to the attempts made to assist him with his claim and his own health care. A claimant is responsible for cooperating with VA in the development of his claim. 38 U.S.C.A. § 5107(a); Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000). When a claimant fails to report for an examination scheduled in conjunction with a claim for increase or a reopened claim for a benefit which was previously disallowed, the claim shall be denied. 38 C.F.R. § 3.655(b). In this case, the Veteran's claim for service connection for a left leg disability was reopened by the Board in August 2011. Therefore, the provisions of 38 C.F.R. § 3.655(b) govern the case. They dictate that the reopened claim shall be denied if the Veteran fails to report for a scheduled examination. As noted above, he has been informed of the consequences of such failure, as well as how to request a new examination if the scheduled date was inconvenient. He was similarly informed that he could file a statement indicating his good cause for missing the scheduled examination. He has taken no action whatsoever; he has simply ignored the VA's attempts to assist him in this matter. As the Veteran failed to report for an examination scheduled for his claim and he has not shown good cause for failing to appear, his claims must be denied. The criteria for a denial of service connection for a left leg disability based on the application of 38 C.F.R. § 3.655(b) have thus been met and the claim must be denied on this basis. Increased rating claims Disability evaluations are assigned to reflect levels of current disability. The appropriate rating is determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating claims for increased ratings, the Board must evaluate the Veteran's condition with a critical eye toward the lack of usefulness of the body or system in question. 38 C.F.R. § 4.10. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. §§ 4.1, 4.41; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While a request for an increased rating must be viewed in light of the entire relevant medical history; where, as here, entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. 38 C.F.R. § 4.1; Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Because the level of a veteran's disability may fluctuate over time, the VA is required to consider the level of the veteran's impairment throughout the entire appeal period. In this respect, staged ratings are a sensible mechanism for allowing the assignment of the most precise disability rating-one that accounts for the possible dynamic nature of a disability while the claim works its way through the adjudication process. O'Connell v. Nicholson, 21 Vet. App. 89 (2007). In another relevant precedent, the Court noted that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. In reaching this conclusion, the Court observed that when a claim for an increased rating is granted, the effective date assigned may be up to one year prior to the date that the application for increase was received if it is factually ascertainable that an increase in disability had occurred within that timeframe. 38 U.S.C.A. § 5110; Hart v. Mansfield, 21 Vet. App. 505 (2007). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In evaluating claims for increased ratings, VA must evaluate the veteran's condition with a critical eye toward the lack of usefulness of the body or system in question. 38 C.F.R. § 4.10. A disability of the musculoskeletal system is measured by the effect on ability 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 in assigning the most accurate disability rating. 38 C.F.R. § 4.40. Although § 4.40 does not require a separate rating for pain, it does provide guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. The Board has a special obligation to provide a statement of reasons or bases pertaining to § 4.40 in rating cases involving pain. Spurgeon v. Brown, 10 Vet. App. 194 (1997). Disability of the joints, including the spine, is measured by abnormalities of motion, such as limitation of motion or hypermobility, instability, pain on motion, or the inability to perform skilled motions smoothly. 38 C.F.R. § 4.45. Painful motion with joint or periarticular pathology and unstable joints due to healed injury are recognized as productive of disability entitled to at least a minimal compensable rating for the joint. 38 C.F.R. § 4.59. Under section 4.59, painful motion is considered limited motion even though a range of motion is possible beyond the point when pain sets in. Hicks v Brown, 8 Vet. App. 417, 421 (1995). Historically, service connection for the disabilities at issue were granted following the Veteran's discharge from service, based upon service treatment records showing mild injuries to his ankles, in conjunction with medical evidence showing continued impairment. A 10 percent disability rating was assigned for each disability, and these ratings have remained in effect since that time. In a claim received in February 2007, the Veteran asserted that higher disability ratings are warranted, based upon his pain and his limitation of motion. Thus, under Hart, medical evidence from February 2006 should be reviewed to ascertain whether an increase in disability had occurred within that timeframe. A February 2006 physical therapy note reflects that the veteran had worn out his ankle braces and that he needed new ones. The Veteran was issued a lumbar spine corset and instructed in its proper use in January 2007. The Veteran complained of swelling and pain in his right ankle in February 2007. Clinical examination revealed mild swelling with mildly decreased range of motion and a normal neurovascular examination. X-ray studies were interpreted as showing mild soft tissue swelling overlying the lateral malleolus of the right ankle. The Veteran was referred for an orthopedic consultation in April 2007. The report of this consultation reflects the physician's opinion that surgical intervention would not alleviate any of his ankle symptoms. He was advised to continue with his ankle brace and to take nonsteroidal anti-inflammatory medication. The Veteran underwent a VA examination for purposes of compensation in May 2007. He reported recurrent low back pain a few times a week, with infrequent radiation into the right thigh. He also reported having had post-service back injuries on the job in 2000 and 2007. He stated that his back pain was worse with prolonged standing or bending, but that his activities of daily living were not impaired, with no incapacitating episodes and no flare-ups. On examination, he had normal posture and gait. Spinal curvature was normal. There was no tenderness or spasm. He had 90 degrees of flexion, 20 degrees of extension, 20 degrees of lateral bending in each direction, and 35 degrees of rotation in each direction with pain reported at the extremes. Lower extremity strength and sensory responses were normal. The examiner noted that a magnetic resonance imaging study done in March 2007 had been normal. Upon clinical examination of the Veteran's ankles, there was no redness, swelling, or deformity. He had 20 degrees of dorsiflexion and 45 degrees of plantar flexion bilaterally. Both joints were stable. The Veteran reported pain upon walking. The examiner reviewed X-ray films from February 2007 and noted that there was no osteoarthritis. The examiner noted that the Veteran had no objective evidence of pain and no neurological abnormalities. The examiner also noted that neither the back nor the ankles had additional limitations due to pain, fatigue, weakness, or lack of endurance following repetitive use. Diagnoses of normal ankles and lumbosacral strain were rendered. The examiner commented that the post-service worsening of the Veteran's back problems was considered secondary to the civilian on-the-job injuries rather than a natural progression of his service-connected lumbosacral strain. An August 2007 primary care treatment note reflects that the Veteran asked his primary care physician to write him a note for disability insurance payments to the effect that he cannot work due to his low back pain. The physician refused to do so, explaining this his X-ray and magnetic resonance imaging studies were normal. An April 2008 mental health treatment note includes the Veteran's report that he had gotten a job driving a truck, although it hurt his back to sit all day. The Veteran underwent another VA examination for purposes of compensation in September 2008. He reported numbness and pain in his lumbar spine with no weakness. He also reported occasional episodes of urinary incontinence which did not require wearing an absorbent pad; he had no problems with erections. He reported being unable to lift more than ten to fifteen pounds, being unable to walk more than three or four minutes, being unable to stand more than five minutes, and unable to sit more than fifteen minutes. He reported he had not worked since February 2007 when he had reinjured his back on the job. He had flares in his back three times a week, which each lasted for two hours and prevented him from walking. As to his ankles, he reported constant pain, swelling, popping, and grinding. He used ankle braces and a crutch. Upon examination, the Veteran walked with a limp and used bilateral ankle braces. Spine curvature and posture were normal. He had no tenderness to palpation and no spinal spasms. Musculoskeletal strength and sensation were 5/5 in the lower extremities. There was no muscular atrophy. There was no pain upon straight-leg extensions bilaterally. Range of motion of the lumbar spine was measured as right and left lateral flexion to 30 degrees with pain from 20 to 30 degrees. He had extension to 20 degrees with pain at 20 degrees. Forward flexion was to 90 degrees with pain reported from 40 to 90 degrees. He had right and left lateral rotation to 45 degrees, with pain at 45 degrees. Examination of the ankles revealed no edema. He had pain to palpation of the lateral malleolus of both ankles. Range of motion was measured as dorsiflexion to 20 degrees, with pain at 20 degrees. Plantar flexion was to 45 degrees, with pain at 45 degrees. The examiner noted that there was no additional limitation by pain, fatigue, weakness, or lack of endurance following repetitive use. Magnetic resonance imaging studies and X-ray studies were interpreted as normal, but for a finding of remote trauma to the right ankle. The examiner rendered diagnostic impressions of chronic lumbar strain and chronic bilateral ankle strain. Right ankle imaging studies in September 2008 were interpreted as showing tenosynovitis of the peroneus longus and brevis, a large amount of fluid which was compatible with synovitis in the ankle, an old avulsion injury distal to the medial malleolus, an old osteochondral injury involving the medial aspect of the talar dome, and a torn anterior talofibular ligament, also an old injury. The Veteran's physician referred him for a rheumatology consultation due to the degree of right ankle synovitis shown. When the rheumatology appointment occurred in November 2008, however, the Veteran complained only of back and knee pain. Upon clinical examination, the Veteran had "severely limited range of motion in his lumbosacral spine, especially upon forward bending. There was no tenderness of the spinous processes. X-ray studies of the lumbar spine and ankles were interpreted as normal, although there were stable findings of remote trauma in the right ankle. No conclusive diagnosis was reached by the rheumatology service. During a November 2008 nursing clinic visit, the Veteran reported having constant chronic pain in his back, ankles, and knees, which he rated as "7" on a scale of 0 to 10. He reported that the pain was exacerbated by activity and exercise and alleviated by rest. In April 2009, the Veteran complained of low back pain which he rated as a "5" on a scale of 0 to 10. He was referred to physical therapy for treatment and exercises. Evaluation by the physical therapy department revealed his gait was within normal limits. It was noted that some components of the Veteran's presentation were consistent with sacroiliac joint discomfort secondary to hypomobility and poor lumbar stability. Other signs were more consistent with a fear of motion and long standing pain. The physical therapist also opined that wearing a back brace might hinder the Veteran's progress by limiting movement and discouraging the use of stabilizing musculature. A May 2009 physical therapy note reflects that the Veteran reported his back was much better. The physical therapist noted improved posture and improved function. He was discharged from physical therapy with instructions to continue his exercises. A May 2009 notation reflects his complaints of muscle spasm in the back, and a request for a muscle relaxant. June 2009 physical therapy notes reflect that he was issued a new right ankle brace. Also in June 2009, nerve conduction testing and electromyography testing was performed to evaluate complaints of bilateral lower extremity pain. All tests were interpreted as within normal limits; with no electrophysiologic evidence of acute or chronic right or left lumbosacral radiculopathy. Additionally, clinical examination revealed normal muscle bulk and tone in both lower extremities and in the lumbar paraspinals. Overall the medical treatment records reflect that the Veteran has been prescribed various medications for control of his back pain over the time period at issue. He has reported upon many occasions that the medications are not strong enough. His VA physicians have generally declined to prescribe narcotic medications, on the grounds that he has well-documented substance abuse problems and also because his physicians perceive his problems as less severe than would warrant such strong and potentially dangerous painkillers. During the February 2011 hearing on appeal, the Veteran testified that he was no longer receiving physical therapy for his back, that he wore the corset brace, and he was unable to bend forward or backward, or side to side. He testified that he had received epidural injections for his back and had been required to stay in a wheelchair for six weeks, during the summer of 2010. He also reported having been confined to bed on account of his back problems. With regard to his ankles, he testified that they swell upon walking and are painful and tender every day. He additionally testified that he had fallen going up and down the stairs at his home, so that he now simply sits and slides down the stairs to protect his ankles. The Veteran's bilateral ankle disabilities are separately rated under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5271 for limited motion of each ankle. Moderate limitation of ankle motion is rated as 10 percent disabling, while marked limitation of motion is rated as 20 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Range of ankle motion is depicted in Plate II at 38 C.F.R. § 4.71, showing ankle dorsiflexion from 0 to 20 degrees, and ankle plantar flexion from 0 to 45 degrees. Review of the Veteran's treatment records, written statements, and hearing testimony throughout the entire time period, from February 2006 until the present, reflects that his ankle disabilities have essentially been static in nature. The medical evidence shows that he uses braces for his ankles, and that he takes anti-inflammatory medication. Additionally, he appears to have occasional swelling in the right ankle. Medical records also show mildly decreased range of ankle motion and normal neurovascular status. Imaging studies were interpreted as reflecting old injury or trauma to the right ankle, but no arthritis or bony pathology involving either ankle. There is no ankylosis. Although the Veteran had some synovitis in his right ankle in September 2008, it had apparently resolved prior to the rheumatology consultation in November 2008, which had originally been scheduled to evaluate the right ankle synovitis. Although the terms "marked," and "moderate" are not defined for purposes of Diagnostic Code 5271, the Board finds that taken in context, the Veteran's ankle disabilities are no more than moderate in nature. All indications are that the Veteran has full range of ankle motion in both ankles, as depicted in Plate II, although he reports experiencing pain at the end range of ankle motion and "mildly decreased" range of right ankle motion was noted in February 2007. Otherwise his complaints appear to involve some pain and swelling. Although only right ankle swelling is documented in the medical records, his testimony as to swelling in both ankles is viewed as credible. He does not have arthritis or bony pathology in either ankle. Although the May 2007 VA examiner found that both ankles were stable upon examination, during the hearing, the Veteran reported some instability in his ankles which caused him to fall on stairs; it is presumably this reported instability along with pain for which the ankle braces are prescribed. In summary, the Veteran's bilateral ankle symptoms of pain, instability, and swelling are more nearly analogous to the criteria set forth for the 10 percent disability rating for each ankle. The preponderance of the evidence is thus against the award of a disability rating in excess of 10 percent for either ankle. Extra-schedular consideration Generally, evaluating a disability using either the corresponding or analogous Diagnostic Codes contained in the rating schedule is sufficient. See 38 C.F.R. § 4.20, 4.27. For exceptional cases, VA has authorized the assignment of extraschedular ratings and provided the following guidance for awarding such ratings: 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, [C & P], upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph 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 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). As the Court recently explained in Thun, a "determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry." Thun v. Peake, 22 Vet. App. 111, 115 (2008). If the RO or Board determines that (1) the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and (2) the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, then (3) the case must be referred to an authorized official to determine whether, to accord justice, an extraschedular rating is warranted. Neither the RO nor the Board is permitted to assign an extraschedular rating in the first instance; rather the matter must initially be referred to those officials who possess the delegated authority to assign such a rating. See Floyd v. Brown, 9 Vet. App. 88, 95 (1996). Anderson v. Shinseki, 22 Vet. App. 423 (2009). In this case, the symptoms described by the Veteran fit appropriately with the criteria found in the relevant Diagnostic Codes for the disabilities at issue. Specifically, the symptomatology and impairment caused by the Veteran's bilateral ankle disabilities are specifically contemplated by the pertinent schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria specifically provide for disability ratings based on a combination of the symptoms claimed by the Veteran and clinical findings and other objective evidence of record. In this case, the Veteran has reported pain, tenderness, and limitation of motion of his ankles resulting from his service-connected disabilities. These symptoms are part of or similar to symptoms listed under the pertinent schedular rating criteria. For these reasons, the Board finds that the schedular rating criteria are adequate to rate the disabilities on appeal, and referral for consideration of an extraschedular evaluation is not warranted. ORDER Service connection for a left leg disability is denied. A disability rating greater than 10 percent for a left ankle disability is denied. A disability rating greater than 10 percent for a right ankle disability is denied. REMAND As indicated above, however, the Board finds that the evidence of record is currently inadequate for a fully-informed disability rating to be assigned. In particular, his hearing testimony that he had been confined to a wheelchair for six weeks after having an epidural shot for relief of back symptoms in 2010 and that he had been confined to bed due to back problems, raises the question of whether his service-connected back disability underwent a significant increase in symptomatology during the pendency of this appeal. Given that the Veteran receives regular VA medical care and has established on-going and productive relationships with his VA caregivers, his VA medical records over the past four years promise to be particularly relevant. He testified during the hearing that he had received only VA care since his most recent workplace injury in 2007. In any case, VA medical records are deemed to be constructively of record in proceedings before the VA. Bell v. Derwinski, 2 Vet. App. 611 (1992). Therefore, his VA records should be updated for the file and obtained for review by adjudicators. In light of the May 2007 VA examiner's comment that post-service worsening of the Veteran's back problems should be considered secondary to the civilian on-the-job injuries rather than a natural progression of his service-connected lumbosacral strain, the Board deems that further medical opinion as to the worsening the Veteran testified to during the hearing is required. Therefore, another VA examination should be conducted to provide a medical opinion as to the Veteran's current level of functioning, and to identify whether any part of that worsening may be attributed to the service-connected portion of the Veteran's low back disability. The Veteran is again informed that failure to report for this VA examination without good cause will result in the denial of his claim. 38 C.F.R. § 3.655(b). Accordingly, the case is REMANDED for the following action: 1. The RO should obtain complete medical records not already received from the Charleston VA Medical Center and all related clinics for inclusion in the claims file. 2. The Veteran should be afforded a VA orthopedic examination to evaluate his level of impairment caused by his service-connected lumbosacral strain. The claims folder, including all records obtained pursuant to the above requests, must be made available to the examiner for review before the examination. All tests and studies deemed helpful by the examiner should be accomplished in conjunction with the examination. The examiner is requested to review the records, and to perform a clinical examination to identify all back symptomatology present upon examination. The examiner is requested to specifically identify all back symptomatology which is related to the service-connected strain, taking the prior medical opinion regarding post-service injuries into consideration. The complete rationale for all opinions expressed should be fully explained. 3. After the development requested above has been completed, the RO should again review the record and adjudicate the issue of entitlement to a disability rating in excess of 10 percent for lumbosacral strain subsequent to June 2009. If the benefit sought on appeal remains denied, the Veteran and his 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 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 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). ____________________________________________ T. D. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs