Citation Nr: 1321732 Decision Date: 07/08/13 Archive Date: 07/18/13 DOCKET NO. 09-06 785A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right ankle disability. 2. Entitlement to an initial disability rating in excess of 10 percent prior to February 9, 2012 and 20 percent as of February 9, 2012 for degenerative disc disease of the cervical spine. 3. Entitlement to an initial disability rating in excess of 10 percent for sacroiliac joint dysfunction. 4. Entitlement to an initial compensable disability rating for left hallux valgus with plantar fasciitis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from September 1983 to September 1986, from September 2001 to September 2003 and from June 2004 to June 2006. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in January 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at a travel Board hearing before the undersigned Veterans Law Judge in February 2011. A transcript of the hearing is of record. The Board remanded these matters in September 2011 for further evidentiary development. The RO continued the denial of the claims as reflected in the February 2012 supplemental statement of the case (SSOC) and returned these matters to the Board for further appellate consideration. The issue of entitlement to service connection for a right ankle disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The preponderance of the evidence shows that prior to January 12, 2011, the Veteran's service-connected degenerative disc disease of the cervical spine was manifested by flexion greater than 30 degrees and a combined range of motion of the cervical spine greater than 170 degrees with consideration of pain and repetitive use and no evidence of muscle spasm, guarding, ankylosis or physician prescribed bed rest. 2. The preponderance of the evidence reveals that as of January 12, 2011, the Veteran's service-connected degenerative disc disease of the cervical spine was manifested by flexion greater than 15 degrees, but not greater than 30 degrees with consideration of pain and repetitive use and no evidence of ankylosis or physician prescribed bed rest. 3. The preponderance of the evidence shows that prior to January 12, 2011 and as of February 9, 2012, the Veteran's service-connected sacroiliac joint dysfunction was manifested by flexion greater than 60 degrees and a combined range of motion of the thoracolumbar spine greater than 120 degrees with consideration of pain and repetitive use and no evidence of muscle spasm, guarding, ankylosis or intervertebral disc syndrome with physician prescribed bed rest. 4. The preponderance of the evidence reveals that from January 12, 2011 to February 8, 2012, the Veteran's service-connected sacroiliac joint dysfunction was manifested by flexion limited to 25 degrees with consideration of pain with no evidence of ankylosis or intervertebral disc syndrome with physician prescribed bed rest. 5. The preponderance of the evidence shows that the Veteran's left hallux valgus with plantar fasciitis was not operated with resection of the metatarsal head and it is not equivalent to amputation of the big toe. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent prior to January 12, 2011 and in excess of 20 percent as of February 9, 2012 for degenerative disc disease of the cervical spine have not been met or approximated. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.71a, Diagnostic Code 5243 (2012). 2. The criteria for an initial 20 percent disability rating from January 12, 2011 to February 8, 2012 for degenerative disc disease of the cervical spine have been met. 3. The criteria for an initial disability rating in excess of 10 percent for sacroiliac joint dysfunction prior to January 12, 2011 and as of February 9, 2012 have not been met or approximated. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.71a, Diagnostic Code 5243 (2012). 4. The criteria for an initial 40 percent disability rating from January 12, 2011 to February 8, 2012 for sacroiliac joint dysfunction have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.71a, Diagnostic Code 5236 (2012). 5. The criteria for an initial compensable disability rating for left hallux valgus with plantar fasciitis have not been met or approximated. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.20, 4.21, 4.27, 4.71a, Diagnostic Code 5280 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA) imposes a duty on the United States Department of Veterans Affairs (VA) to notify and assist a claimant in developing a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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); 38 C.F.R. § 3.159. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to claims for service connection for a disability, the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of the claim: (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). Thus, upon receipt of an application for a service-connection claim, VA must review the information and the evidence presented with the claim and 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 including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. Regarding the Veteran's increased rating claims, she is appealing the initial disability rating assignments for degenerative disc disease of the cervical spine, sacroiliac joint dysfunction and left hallux valgus with plantar fasciitis. The January 2008 rating decision granted the Veteran's claims of entitlement to service connection and therefore, such claims are now substantiated. Her filing of a notice of disagreement as to the initial ratings assigned in the January 2008 determination does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). 38 C.F.R. § 3.159(b)(3). Rather, the Veteran's appeal as to the initial rating assignment triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103. Under 38 U.S.C.A. § 7105(d), upon receipt of a notice of disagreement in response to a decision on a claim, the agency of original jurisdiction must take development or review action it deems proper under applicable regulations and issue a statement of the case if the action does not resolve the disagreement either by grant of the benefits sought or withdrawal of the notice of disagreement. If VA receives a notice of disagreement in response to notice of its decision on a claim that raises a new issue, section 7105(d) requires VA to take proper action and issue a statement of the case if the disagreement is not resolved; however, section 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate the newly raised issue. See VAOPGCPREC 8-03 (December 22, 2003); 69 Fed. Reg. 25180 (2004); 38 C.F.R. § 3.159(b)(3) (2012). As a consequence, VA is only required to advise the Veteran of what is necessary to obtain the maximum benefit allowed by the evidence and the law. This has been accomplished here. The January 2009 statement of the case, under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant diagnostic codes for rating disabilities of the spine and hallux valgus, and included a description of the rating formulas for all possible schedular ratings under these diagnostic codes. Therefore, the Veteran was informed of what was needed not only to achieve the next-higher schedular ratings, but also to obtain all schedular ratings above the initial evaluation that the RO assigned. Therefore, the Board finds that the Veteran has been informed of what was necessary to achieve a higher rating for the service-connected disabilities on appeal. With respect to VA's duty to assist, the Board finds that VA has fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment records, private treatment records, VA examination reports dated in November 2007 and February 2012 and a Board hearing transcript dated in February 2011. The November 2007 and February 2012 VA examination reports reflect that the examiners conducted a review of the Veteran's claims file in addition to obtaining an oral history and an evaluation of the Veteran with respect to symptoms of degenerative disc disease of the cervical spine, sacroiliac joint dysfunction and left hallux valgus with plantar fasciitis. The examiners documented in detail the claimed symptoms and the effect those symptoms have on her occupational functioning and daily activities. Accordingly, the Board concludes that the examinations are adequate for rating purposes. These issues were previously remanded in September 2011 to provide the Veteran with a VA examination to ascertain the current severity of her cervical spine, sacroiliac joint and left foot disabilities. The record contains a February 2012 VA examination report that adequately discusses the current manifestations of the Veteran's service-connected disabilities on appeal. Accordingly, the Board finds that there has been substantial compliance with the September 2011 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, the claims file contains the Veteran's statements and testimony in support of her claims. The Veteran has not identified, and the record does not otherwise indicate, any existing, pertinent evidence that has not been obtained. The record also presents no basis for further development to create any additional evidence to be considered in connection with the matters currently under consideration. Under these circumstances, the Board finds that the Veteran is not prejudiced by appellate consideration of the claims on appeal at this juncture, without directing or accomplishing any additional notification and/or development action. II. Analysis Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Where 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 for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3 (2012). When the evidence is in relative equipoise, the Veteran is accorded the benefit of the doubt. See 38 U.S.C.A. § 5107(b). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal arose from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). In evaluating disabilities of the musculoskeletal system, additional rating factors include functional loss due to pain supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (2011). Inquiry must also be made as to weakened movement, excess fatigability, incoordination, and reduction of normal excursion of movements, including pain on movement. 38 C.F.R. § 4.45 (2012). The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or misaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2012). The United States Court of Appeals for Veterans Claims (Court) has emphasized that when assigning a disability rating, it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on motion. DeLuca v. Brown, 8 Vet. App. 202 (1995). Degenerative Disc Disease of the Cervical Spine The Veteran's service-connected degenerative disc disease of the cervical spine is currently evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012) for intervertebral disc syndrome (IVDS). The criteria for IVDS rates the disability according to the number of "incapacitating episodes" suffered per year. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). A 20 percent rating is warranted where IVDS results in incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months and a 40 percent rating is warranted where IVDS results in incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 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. Id. at Note (1). In addition to rating intervertebral disc syndrome on the basis of incapacitating episodes, the Rating Schedule directs the Board to consider whether a higher evaluation is available under the General Rating Formula for Diseases and Injuries of the Spine (Spine Rating Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (2012). Under that formula, a 20 percent rating is assignable for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, or, the combined range of motion of the cervical 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. A 30 percent rating is warranted where forward flexion of the cervical spine is 15 degrees or less, or there is favorable ankylosis of the entire cervical spine. A 40 percent rating is assignable where there is unfavorable ankylosis of the entire cervical spine and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. These criteria are applied with and without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 38 C.F.R. § 4.71a (2012). Forward flexion, extension and lateral flexion to 45 degrees, each, and rotation to 80 degrees, are considered normal range of motion of the cervical spine. 38 C.F.R. § 4.71a, Plate V. During the pendency of this appeal, the RO increased the disability rating assigned to the Veteran's degenerative disc disease of the cervical spine from 10 percent to 20 percent under Diagnostic Code 5243, effective February 9, 2012. The Board has considered whether the Veteran is entitled to a higher disability rating under the assigned stages of this appeal. Additionally, the Board has considered whether additional staging is appropriate. For reasons discussed in more detail below, the Board finds that the stages created by the RO are not appropriate in light of the evidence of record and that the Veteran is entitled to a 20 percent disability rating as of January 12, 2011 instead of February 9, 2012. The Board finds that the preponderance of the evidence shows that the Veteran has IVDS. Nonetheless, the medical evidence of record reveals that the Veteran has not had any physician prescribed bed rest having a total duration of at least two weeks over a 12 month period at any time during the appeal period. With respect to evaluating the Veteran's claim under the Spine Rating Formula, the preponderance of the evidence shows that prior January 12, 2011 forward flexion of the thoracolumbar spine was not limited to 30 degrees or less and the combined range of motion of the cervical spine was greater than 120 degrees even with consideration of pain and any loss of function on repetitive use. In this regard, the Board notes that a March 2008 private treatment record indicates that the Veteran's flexion of the cervical spine was limited to 15 degrees. Nonetheless, the limitation of flexion prior to this range of motion revealed that flexion of the cervical spine was normal and within three weeks after this documentation a private treatment record shows that the Veteran's flexion was limited to 34 degrees. Other documentation of range of motion testing indicates that flexion of the cervical spine was not less than 30 degrees. Based on the foregoing, the concludes that the March 2008 range of motion testing for flexion is an outlier and does not represent an accurate assessment of the Veteran's range of motion for flexion of the cervical spine. Private treatment records dated in April 2010 and May 2010 are not probative in this analysis with respect to the Veteran's range of motion as the results of range of motion testing were reported in percentage and it is unclear whether the percentage is based on total range of motion or a percentage change since a previous valuation. Furthermore, the Veteran did not have any additional loss of range of motion due to pain, weakness, fatigue, incoordination or instability to include on repetitive motion. There was no objective evidence of muscle spasm, guarding or localized tenderness. The evidence shows that the Veteran does not have any postural abnormality or fixed deformity (ankylosis). Therefore, the Veteran is not entitled to a disability rating in excess of 10 percent under the General Rating Formula for Diseases and Injuries of the Spine prior to January 12, 2011 for degenerative disc disease of the cervical spine. A private treatment record dated in January 12, 2011 reveals that the Veteran's cervical spine was limited to 30 degrees of flexion. The Veteran's VA examination dated in February 2012 also shows that the Veteran's range of motion of the cervical spine was limited to 30 degrees. The evidence of record reveals that the Veteran's cervical spine disability was not limited to 15 degrees or less at any time after January 12, 2011 to include consideration of pain on motion and any limitation of function on repetitive use. Accordingly, the Veteran's degenerative disc disease of the cervical spine more closely approximates a 20 percent disability rating as of January 12, 2011. The Board further notes that the Veteran is not entitled to a separation disability rating for neurological abnormalities related to the Veteran's cervical spine at any time during the appeal period. See General Rating Formula for Diseases and Injuries of the Spine, Note 1 (provides that neurological abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code). The Veteran did not report and the medical evidence of record does not otherwise show that the Veteran's degenerative disc disease of the cervical spine has resulted in any neurological impairment to include bowel or bladder impairment. Accordingly, the evidence of record does not show any evidence of neurological abnormalities due to the Veteran's cervical spine disability. Extraschedular Consideration According to VA regulation, in exceptional cases where schedular ratings are found to be inadequate, the RO may refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "an extraschedular 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) (2012). An extraschedular disability rating is warranted based upon 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 that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and it is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating. In this case, the evidence does not show such an exceptional disability picture that the available schedular evaluation for service-connected degenerative disc disease of the cervical spine is inadequate. A comparison between the level of severity and symptomatology of the Veteran's cervical spine disability with the established criteria found in the rating schedule for spine disabilities show that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board finds that the rating criteria considers the functional impact of the Veteran's degenerative disc disease of the cervical spine and the evidence of record does not indicate that it has caused marked interference with employment that is not already contemplated in the rating schedule. Furthermore, the evidence of record does not show that her service-connected cervical spine disability has necessitated frequent periods of hospitalization or otherwise rendered impracticable the regular schedular standards for rating such disability. Under these circumstances, and in the absence of factors suggestive of an unusual disability picture, further development in keeping with the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) is not warranted. Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total disability rating based on unemployability due to service- connected disability; either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran asserted that her cervical spine disability affects her ability to work as a full time teacher. The Board concludes that this statement does not indicate that her service-connected neck disability has resulted in her being totally unemployable. The Veteran has not argued, and the record does not otherwise reflect, that her degenerative disc disease of the cervical spine renders her totally unemployable. Accordingly, the Board concludes that a claim for TDIU has not been raised. Sacroiliac Joint Dysfunction. The Veteran's sacroiliac joint dysfunction is currently evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5236 (2012) for sacroiliac injury and weakness. Under Diagnostic Code 5236, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 10 percent rating is assigned for 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 rating is assigned under Diagnostic Code 5236 for 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 is 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 thoracolumbar spine limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine warrants a 40 percent disability rating. A 50 percent disability rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. Under 37 C.F.R. § 4.71a, Plate V, for VA compensation purposes, 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 the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (1), appending the diagnostic code, also articulates that neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. Id., Note (1). A review of the Veteran's relevant treatment and examination reports reveals that flexion of the Veteran's sacroiliac joint dysfunction was not 60 degrees or less and the Veteran's combined range of motion was greater than 120 degrees to include consideration of pain and any limitation of function on repetitive use at any time prior to January 12, 2011. The Board notes that private treatment records dated in April 2010 and May 2010 are not probative in this analysis with respect to the Veteran's range of motion as the results of range of motion testing are reported in percentage and it is unclear whether the percentage is based on total range of motion or percentage change since a previous evaluation. Furthermore, the evidence prior to January 12, 2011 does not show that the Veteran's sacroiliac joint dysfunction results in muscle spasm or guarding severe enough to result in an altered gait or abnormal spinal culture. Based on the foregoing, the Board finds that prior to January 12, 2011 the Veteran's sacroiliac joint dysfunction most closely approximates the current 10 percent disability rating. The Board notes that a private physical therapy evaluation dated in January 12, 2011 reveals that the Veteran had an increase in symptoms after she reinjured her back in October 2010. The Veteran was unable to tolerate overpressure and therefore, the physician was unable to provide results for passive range of motion for lumbar flexion. Lumbar flexion on active range of motion was limited to 25 degrees with pain. Accordingly, as of January 12, 2011 the evidence of record shows an increase in disability that more closely approximated a 40 percent disability rating under Diagnostic Code 5236. The Veteran was provided with another VA examination dated February 9, 2012. The examination revealed that the Veteran's forward flexion was limited to 80 degrees with consideration of pain and any functional loss on repetitive motion. The combined range of motion of the thoracolumbar spine was greater than 120 degrees. The Veteran reported that when she experiences flare ups it makes it difficult for her to walk and do household chores. The examination revealed that the Veteran did not have any guarding or muscle spasm of the thoracolumbar spine. Based on the foregoing, the Board finds that the Veteran's sacroiliac joint dysfunction most closely approximates a 10 percent disability rating as of February 9, 2012 and the Veteran is not entitled to an increased rating as of February 9, 2012. The Board has also considered whether the Veteran is entitled to a separate disability rating or a higher disability rating under other Diagnostic Codes. Under 38 C.F.R. § 4.71a, Diagnostic Code 5242, Note 1, any associated objective neurological abnormalities, including but not limited to, bowel or bladder impairment, should be evaluated separately under the appropriate diagnostic code. In this regard, during the appeal, the Veteran was granted a separate disability rating for radiculopathy of the right lower extremity. As the Veteran did not appeal this issue, it is not before the Board. Thus, the Board will consider whether the Veteran should receive a separate rating for any other objective neurological abnormalities associated with the Veteran's service-connected sacroiliac joint dysfunction. The evidence of record reveals that the Veteran does not have bladder impairment, bowel impairment, left lower extremity disability or any other neurological disability related to the Veteran's service-connected sacroiliac joint dysfunction. Accordingly, the Veteran is not entitled to a separate disability rating for bowel impairment, bladder impairment or any other neurological disability. Under Diagnostic Code 5243, for intervertebral disc syndrome (IVDS), a 20 percent rating is warranted where IVDS results in incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). The medical evidence does not support a finding of IVDS or incapacitating episodes with physician prescribed bed rest as described in the regulations to warrant an increased rating. See id. at Note (1). In conclusion, the Board finds that the preponderance of the evidence shows that the Veteran is not entitled to a disability rating in excess of 10 percent prior to January 12, 2011 and as of February 9, 2012. However, the evidence of record is at least in equipoise that the Veteran's sacroiliac joint dysfunction more closely approximates a 40 percent disability rating from January 12, 2011 to February 8, 2012. Regarding whether the claim should be referred for extraschedular consideration, the evidence does not show such an exceptional disability picture that the available schedular evaluation for the service-connected sacroiliac joint dysfunction is inadequate. A comparison between the level of severity and symptomatology of the Veteran's sacroiliac joint dysfunction with the established criteria found in the rating schedule for sacroiliac injury shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology. In this regard, the regulations specifically address the Veteran's low back pain with resulting reduced range of motion. The rating criteria consider the functional impact of the Veteran's low back pain and reduced range of motion. The evidence does not indicate that her sacroiliac joint dysfunction has caused marked interference with her employment that is not already contemplated in the rating schedule. Furthermore, the medical record does not show that the Veteran's service-connected back disability has necessitated frequent periods of hospitalization or otherwise rendered impracticable the regular schedular standards for rating such disability. Under these circumstances, and in the absence of factors suggestive of an unusual disability picture, further development in keeping with the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) is not warranted. With respect to whether a claim for TDIU has been expressly or implicitly raised by the record, the Veteran has not argued, and the record does not otherwise reflect, that her sacroiliac joint dysfunction renders her totally unemployable. Accordingly, a claim for TDIU has not been raised. Left Hallux Valgus with Plantar Fasciitis The Veteran is currently assigned a noncompensable rating for left hallux valgus with plantar fasciitis under Diagnostic Code 5280 for unilateral hallux valgus. A 10 percent rating is assigned when hallux valgus is operated on with resection of the metatarsal head or when the hallux valgus is so severe that it is equivalent to amputation of the great toe. 38 C.F.R. § 4.71a, Diagnostic Code 5280. A 10 percent rating is the highest schedular rating available under this diagnostic code. The Board has considered the evidence of record and finds that the Veteran's left hallux valgus with plantar fasciitis disability does not meet the criteria for a compensable evaluation. The evidence of record shows that the Veteran has not received surgical treatment of her hallux valgus of the left foot. The Veteran reported pain located in the dorsum aspect and mid-lateral planter aspect of the left foot while standing and walking during the November 2007 VA examination. There was no evidence of heat, redness, stiffness, fatigability, weakness, lack of endurance or other symptoms. There was objective evidence of tenderness at the plantar fascia insertion. The examiner determined that the Veteran had mild hallux valgus of the first toe with no stiffness of the joint. X-rays of the left foot in November 2007 revealed soft tissue swelling. A September 2007 private treatment record documents that the Veteran complained of discomfort in the left foot. Private treatment records dated from August 2009 to December 2009 reveal that that the Veteran complained of pain and there was evidence of pain in the left foot on palpation. The VA examiner in February 2012 determined that the Veteran's service-connected left plantar fasciitis would be expected to negatively impact her ability to walk extended distances to a mild degree. The overall medical evidence of record indicates that the Veteran has had mild symptoms of hallux valgus and plantar fasciitis throughout the appeal period. Accordingly, the evidence of record reveals that the severity of the left foot hallux valgus with plantar fasciitis does not equate to the amputation of the great toe throughout the appeal. Accordingly, the Board finds that the Veteran's left hallux valgus with plantar fasciitis more closely approximates the current noncompensable disability rating. The Board has considered whether the Veteran is entitled to a higher disability rating under alternative diagnostic codes. In this regard, the Veteran's service-connected left foot disability is not manifested by flatfoot, claw foot, or malunion or nonunion of the tarsal or metatarsal bones, rendering higher evaluations under Diagnostic Codes 5276, 5278, and 5283 inapplicable. In addition, the Veteran's left hallux valgus with plantar fasciitis more closely approximates a mild disability during the appeal period and therefore, it does not warrant a compensable disability rating under Diagnostic Code 5284 (other foot injuries). Radiological evidence reveals that the Veteran does not have arthritis associated with her hallux valgus and therefore, a 10 percent disability rating for arthritis with objective evidence of painful motion is not warranted. See 38 C.F.R. § 7.71a, Diagnostic Codes 5003, 5010 (2012). The Board has considered whether staged ratings are appropriate. The competent medical evidence of record shows that the Veteran's symptoms of left hallux valgus with plantar fasciitis have not fluctuated materially during the course of this appeal. As such, a staged rating is not warranted. In regards to the issue of whether the Veteran's left hallux valgus with plantar fasciitis should be referred for extraschedular consideration, the Board finds that the evidence does not show such an exceptional disability picture that the available schedular evaluation for the service-connected bilateral hallux valgus is inadequate. A comparison between the level of severity and symptomatology of the Veteran's left hallux valgus with plantar fasciitis with the established criteria found in the rating schedule for disabilities of the foot show that the rating criteria reasonably describes the Veteran's disability level and symptomatology. The Board finds that the schedular criteria for evaluating foot disabilities consider the functional impact of the Veteran's left hallux valgus with plantar fasciitis to include pain and the evidence of record does not indicate that it has caused marked interference with employment that is not already contemplated in the rating schedule. Furthermore, the evidence of record does not show that her service-connected left hallux valgus with plantar fasciitis has necessitated frequent periods of hospitalization or otherwise rendered impracticable the regular schedular standards for rating such disability. Under these circumstances, and in the absence of factors suggestive of an unusual disability picture, further development in keeping with the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) is not warranted. With respect to whether a claim for TDIU has been expressly or implicitly raised by the record, the Veteran has not argued, and the record does not otherwise reflect, that her left hallux valgus with plantar fasciitis renders her totally unemployable. Accordingly, a claim for TDIU has not been raised. ORDER Entitlement to an initial disability rating in excess of 10 percent prior to January 12, 2011 and in excess of 20 percent as of February 9, 2012 for degenerative disc disease of the cervical spine is denied. Entitlement to an initial 20 percent disability rating from January 12, 2011 to February 8, 2012 for degenerative disc disease of the cervical spine is granted. Entitlement to an initial disability rating in excess of 10 percent for sacroiliac joint dysfunction prior to January 12, 2011 and as of February 9, 2012 is denied. Entitlement to an initial 40 percent disability from January 12, 2011 to February 8, 2012 for sacroiliac joint dysfunction is granted. Entitlement to an initial compensable disability rating for left hallux valgus with plantar fasciitis is denied. REMAND The Veteran contends that she injured her right ankle in February 1995 during physical training while serving in the Reserves. She also asserts that her right ankle disability increased in severity while on active duty from September 2001 to September 2003 and from June 2004 to June 2006. The evidence of record shows that the Veteran was on inactive duty for training on February 18, 1995 and February 19, 1995. A note from the Veteran's private physician dated February 21, 1995 notes that the Veteran had a right ankle sprain with continued swelling and recommended that the Veteran should not run for the next six months. In September 2001 prior to entering into active duty service, the Veteran presented for follow up for posttraumatic right ankle pain and swelling for two years. After physical examination, the Veteran was diagnosed with posttraumatic right ankle laxity. An X-ray noted mild degenerative changes of tibiotalar joint. Impression was mild degenerative joint disease. As a right ankle disability was not noted upon entrance of active duty in September 2001, the presumption of soundness applies. Therefore, there must be clear and convincing evidence that the Veteran's right ankle disability existed prior to service and was not aggravated by service to rebut the presumption of soundness. See VAOPGCPREC 3-2003; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). If VA is unable to rebut the presumption of soundness; then it is a claim for service connection based on incurrence of disability in service. The Veteran's service connection claim for a right ankle disability was remanded in September 2011 to obtain a VA examination and opinion to determine whether there is clear and unmistakable evidence (i.e., obvious, manifest or undebatable) that the Veteran's right ankle disability existed prior to the Veteran's second period of active duty service between September 2001 and September 2003 and, if so, whether there is clear and unmistakable evidence there was no increase in disability in service or any increase was due to the natural progress of the preexisting condition. A February 2012 VA examination report shows that the VA examiner determined that the Veteran had a right ankle sprain in 1995, but the orthopedic examination conducted in February 2012 was normal and there is no current objective evidence of a chronic right ankle disability. The Board notes that a VA examiner in November 2007 determined that the Veteran had current diagnosis of status post right ankle closed fracture with mild degenerative joint disease of the tibiotalar joint. The requirement for a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). With respect to the issue of whether there was clear and unmistakable evidence of a disability prior to service, the February 2012 VA examiner determined that it was impossible to determine if the Veteran had a chronic right ankle disability prior to service due to the inconsistencies provided by the Veteran during the examination and in the medical record. The Board observes that the examiner did not address the medical evidence of a private physician note dated in February 1995 that reveals the Veteran had a right ankle sprain, the recurring complaints of right ankle pain and swelling prior to active duty service in September 2001 and the diagnosis of mild degenerative joint disease in September 2001 prior to the second period of active duty service. Based on the foregoing, the Board finds that the Veteran should be provided with another VA examination and opinion in order to adequately adjudicate the Veteran's claim. Furthermore, the Board remand in September 2011 determined that it was necessary to determine whether the Veteran was on active duty for training on September 11, 2001, when the Veteran was diagnosed with right ankle degenerative joint disease. The claims file does not contain any information on whether the Veteran had active duty for training in 2001 to include September 2001. It appears that the AMC obtained copies of the Veteran's Reserve record through the Defense Personnel Records Information Retrieval System (DPRIS), but did not obtain the Veteran's military financial pay records. Thus, the Board finds that the RO/AMC should make another attempt to verify any period of active duty for training in 2001. Accordingly, the case is REMANDED for the following action: 1. Attempt to verify the exact dates of any ACDUTRA the Veteran had with the U.S. Army Reserves in 2001 from all appropriate sources to include a request of pay records from the Defense Finance and Accounting Service (DFAS) that indicate the Veteran's duty status for ACDUTRA. If this information is not available, obtain written confirmation of that fact. If the RO/AMC is unable to secure these records, it must notify the Veteran and (a) identify the specific records it is unable to obtain; (b) briefly explain the efforts that it made to obtain those records; (c) describe any further action to be taken with respect to the claim; and (d) notify the Veteran that she is ultimately responsible for providing the evidence. All efforts to obtain these records should be fully documented. 2. After completing the foregoing, schedule a VA examination with an appropriate specialist to evaluate the Veteran's claim for service connection for a right ankle disability. The claims file must be made available to, and reviewed by, the examiner, and the examination report must reflect that the claims file was reviewed. All indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file, identify any and all disorders of the right ankle (to include any right ankle disabilities documented in the claims file during the appeal period) and provide an opinion with respect to the following questions: a. Whether there is clear and unmistakable (obvious, manifest or undebatable) evidence that any current right ankle disorder existed prior to the Veteran's period of active duty service from September 2001 to September 2003. b. If the examiner finds that any current right ankle disorder pre-existed service, whether there is clear and unmistakable (obvious, manifest or undebatable) evidence that the pre-existing right ankle disorder did not undergo a worsening in service to a permanent degree beyond that which would be due to the natural progression of the disorder. Please identify any such evidence with specificity. c. If it is determined that the Veteran's right ankle disorder did not pre-exist service or that there is no clear and unmistakable (obvious, manifest or undebatable) evidence that the Veteran's right ankle disability existed prior to service and was not aggravated by service, the examiner is further requested to provide an opinion whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran's right ankle disability was incurred in active duty, active duty for training or inactive duty for training or is otherwise related o the Veteran's active military service. The examiner must provide an explanation for all conclusions. 3. Upon completion of the foregoing, readjudicate the Veteran's claim of entitlement to service connection for a right ankle disability, based on a review of the entire evidentiary record. If the benefits sought on appeal remains denied, provide the Veteran and her representative with a supplemental statement of the case and the opportunity to respond thereto. Thereafter, subject to current appellate procedure, the case should be returned to the Board for further consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs