Citation Nr: 1325245 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 09-35 023 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a blood infection. 2. Entitlement to service connection for lesions. 3. Entitlement to service connection for tumors. 4. Entitlement to service connection for a neck disability, claimed as neck pain. 5. Entitlement to service connection for headaches. 6. Entitlement to service connection for a right ankle disability, to include Achilles' tendonitis, claimed as right foot pain. 7. Entitlement to a disability evaluation in excess of 10 percent for low back strain with scoliosis. 8. Entitlement to an initial disability evaluation in excess of 10 percent for bilateral hearing loss. 9. Entitlement to an initial disability evaluation in excess of 10 percent for tinnitus. 10. Entitlement to an initial disability evaluation in excess of 10 percent for degenerative joint disease of the right knee. 11. Whether severance of the award of service connection for degenerative joint disease of the right knee was proper ATTORNEY FOR THE BOARD T. Sherrard, Counsel INTRODUCTION The Veteran, who is the Appellant in this case, had active service in the United States Army from November 1984 to March 1988, and service in the West Virginia Army National Guard from June 1993 to May 2002, with various periods of active duty for training (ADT) and inactive duty for training (IADT), including a period of active federal service from October 1998 to December 1998. This matter comes before the Board of Veterans' Appeals (BVA or Board) from July 2007, January 2012, and August 2012 rating decisions by the above Department of Veterans Affairs (VA) Regional Office (RO). On his VA Form 9, the Veteran requested a Board hearing. However, in February 2013, he submitted correspondence indicating he wished to withdraw his request for a Board hearing and asked that the case be considered on the evidence already of record. Under 38 C.F.R. § 20.704(e), a request for hearing may be withdrawn by an appellant at any time before the hearing. Thus, the Board will proceed with appellate review. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. The issues of entitlement to higher initial disability evaluations for hearing loss, tinnitus, and right knee degenerative joint disease and the propriety of severance of service connection for right knee degenerative joint disease are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. The Veteran did not incur an injury or disease manifesting in a blood infection, lesions, tumors, neck disability, or headaches during active service, a right ankle/foot injury incurred during a period of active duty for training resolved prior to separation, symptoms of a blood infection, lesions, tumors, neck disability, headaches, and right ankle/foot disability were not unremitting in service, symptoms of these conditions have not been unremitting since service separation, and the Veteran does not have current disabilities manifesting in a blood infection, lesions, tumors, neck disability, headaches, or right ankle/foot disability. 2. For the rating period on appeal prior to July 14, 2011, the Veteran's low back strain with scoliosis has been manifested by forward flexion to no less than 70 degrees, accounting for pain on motion and after repetition; combined range of motion to no less than 220 degrees, accounting for pain on motion and after repetition; no muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour; and no incapacitating episodes. 3. For the rating period on appeal from July 14, 2011, forward, the Veteran's low back strain with scoliosis has been manifested by forward flexion limited to 60 degrees, accounting for pain on motion and after repetition; and no incapacitating episodes. CONCLUSIONS OF LAW 1. The criteria for service connection for a blood infection have not been met. 38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 2. The criteria for service connection for lesions have not been met. 38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 3. The criteria for service connection for tumors have not been met. 38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 4. The criteria for service connection for a neck disability have not been met. 38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 5. The criteria for service connection for headaches have not been met. 38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 6. The criteria for service connection for a right ankle or foot disability have not been met. 38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 7. The criteria for an increased disability evaluation in excess of 10 percent for a low back strain with scoliosis have not been met for the period prior to July 14, 2011. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5243, 5003 (2012). 8. Resolving reasonable doubt in the Veteran's favor, the criteria for an increased evaluation of 20 percent for a low back strain with scoliosis have been met for the rating period on appeal from July 14, 2011, forward. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5243, 5003 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection for Blood Infection, Lesions, Tumors, Neck Disability, Headaches, and Right Ankle/Foot Disability Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). For certain chronic diseases, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The United States Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Active military service includes active duty, any period of ADT during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of IADT during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident (CVA) which occurred during such training. 38 U.S.C.A. § 101(21), (24) (West 2002); 38 C.F.R. § 3.6(a), (c), (d) (2012). ADT includes full-time duty performed for training purposes by members of the National Guard of any State. 38 U.S.C.A. § 101(22) (West 2002); 38 C.F.R. § 3.6(c)(3) (2012). IADT includes duty (other than full-time duty) under sections 316, 502, 503, 504, or 505 of title 32 (32 U.S.C.S. §§ 316, 502, 503, 504, or 505), or the prior corresponding provisions of law. 38 U.S.C.A. § 101(23) (West 2002); 38 C.F.R. § 3.6(d)(4) (2012). Presumptive periods for service connection do not apply to ADT or IADT. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Thus, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing AD or ADT, from an injury incurred or aggravated while performing IADT, or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during a period of IADT. 38 U.S.C.A. §§ 101(24), 106, 1110 (2012). The Veteran contends that he has a blood infection, lesions, tumors, a neck disability, headaches, and a right ankle/foot disability that are related to active service. He avers that he was exposed to carcinogenic materials and other toxins, including cleaning agents, solvents, glues, paints, primers, dye penetrate, jet fuels, Jp-8, Jp-4, hydraulic fluids, and radioactive material, as a result of drilling, filling, and forming Magnesium aircraft components during active service, and that there should be presumptions related to exposure to these types of materials. The Board acknowledges that in certain cases, service connection can be presumed if a veteran was exposed to a herbicide agent during active service. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). Here, however, the weight of the evidence demonstrates that the Veteran was not exposed to herbicides during active service. Indeed, the Veteran does not allege exposure to herbicides; rather, he avers he was exposed to carcinogenic agents in the course of performing aircraft maintenance. In addition, in certain cases, service connection can be presumed under 38 C.F.R. § 3.309(d) where it has been shown that the veteran was exposed to radiation. Here, the weight of the evidence of record demonstrates that the Veteran does not qualify as a radiation-exposed veteran, nor are his claimed conditions listed as presumptive conditions in 38 C.F.R. § 3.309(d)(2) or a radiogenic disease under 38 C.F.R. § 3.311. The evidence of record does not demonstrate, nor does he allege, that he participated in a radiation-risk activity. After a review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence demonstrates that the Veteran incurred a right foot and ankle injury during a period of ADT, but did not incur an injury, event, or disease manifesting a blood infection, lesion, tumor, neck disability, or headaches during any period of active service, and that the weight of the evidence demonstrates that symptoms of a right ankle/foot disability, blood infection, lesion, tumor, neck disability, or headaches were not unremitting during any period of active service. The Veteran's service treatment records from his active service from 1984 to 1988 are negative for any symptoms of a right ankle/foot disability, blood infection, lesions, tumors, neck disability, or headaches. A March 1988 note indicates that a separation physical was not necessary as health records were reviewed and there was no evidence of any medical history indicating a requirement for a physical examination. Following separation from active service in the U.S. Army in 1988 and prior to the Veteran's enlistment in the West Virginia Army National Guard, private treatment records show that he had persistent complaints of a sore throat, and in June 1992, he underwent a direct laryngoscopy and biopsy which resulted in a diagnosis of leukoplakia of the left piriform sinus. The biopsy showed a benign vocal cord polyp and benign hyperkeratosis. The April 1993 National Guard enlistment examination report is negative for any complaints regarding either the throat or the sinuses. Indeed, clinical evaluation of the sinuses is marked as normal. Thus, it appears that the lesions/tumors of the throat and sinuses the Veteran experienced after separation from active service in the Army in 1988 and prior to enlistment in the National Guard in 1993 had resolved by the time of his enlistment in 1993. The Veteran's National Guard service treatment records show that in June 2000, he again complained of a sore throat, reporting several throat lesions in the past as well as a sinus tumor. He also reported an infection in his blood. A sinus x-ray was normal; the study was compared to a previous study from October 1991, and it was noted that, since the prior study, the Veteran had undergone sinus surgery with removal of the previously noted retention cyst in the right maxillary sinus (in 1992). A throat x-ray was also normal and showed no lesions. A blood test showed low levels of sodium, high levels of alkaline phosphatase, and high levels of two other chemicals, but the Veteran was not diagnosed with a blood infection. Thus, even if the treatment in June 2000 occurred during a period of ADT, it does not represent a manifestation of lesions, tumors, or a blood infection. Further, the remainder of the Veteran's National Guard treatment records are negative for blood infections, lesions, and tumors. Although the Veteran checked "yes" next to "tumor, growth, cyst, cancer" on his Report of Medical History in November 2001, no findings or diagnoses of a lesion or tumor were made at that time, and on a March 2002 Annual Medical Certificate, the Veteran responded "no" when asked if he had any current medical problems. The Veteran's own statement is highly probative evidence against his claim. The Veteran's National Guard treatment records also show that in July 1996, during a period of ADT, the Veteran stepped off of a plane and twisted his ankle. He was diagnosed with an acute contusion of the calcaneus and an acute strain of the Achilles tendon. An x-ray study of the right ankle was normal. Subsequent treatment records suggest that the right ankle/foot injury resolved prior to the Veteran's separation from the National Guard. A November 2001 physical examination report shows normal evaluation of the feet and lower extremities and does not indicate any report, complaints, or findings of a right ankle or foot problem. In addition, as noted above, on a March 2002 Annual Medical Certificate, two months prior to separation from the National Guard, the Veteran responded "no" when asked if he had any current medical problems. His own statement is highly probative evidence against his claim of continuous right ankle and foot disability symptoms during service. The National Guard treatment records are negative for any report or findings of a neck disability or headaches, including the March 2002 Annual Medical Certificate. In short, there are no complaints, symptoms, history, findings, diagnoses, or treatment of blood infections, lesions, tumors, a neck disability, or headaches during any period of active service, and the right ankle/foot injury resolved prior to separation from the National Guard. The Board next finds that the weight of the evidence demonstrates that symptoms of a blood infection, lesions, tumors, a neck disability, headaches, and a right ankle/foot disability have not been unremitting since separation from the National Guard in May 2002. As noted above, the March 2002 Annual Medical Certificate is negative for any blood infection findings, lesions, tumors, neck disability, headaches, or right foot/ankle problems. Following service separation in May 2002, the evidence of record does not show any complaints, diagnosis, or treatment for any of these problems. The absence of post-service complaints, findings, diagnosis, or treatment for blood infection, lesions, tumors, neck disability, headaches, and right ankle/foot problems after service separation is one factor that tends to weigh against a finding of unremitting symptoms of these conditions after service separation. See Buchanan, 451 F.3d 1336 (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). With regard to the Veteran's more recent assertions made as part of the current compensation claim that he has had symptoms of a blood infection, lesions, tumors, a neck disability, headaches, and a right ankle/foot disability since separation from service in May 2002, the Board finds that, while the Veteran is competent to report the onset of such symptoms, his recent reports of unremitting symptoms since service are outweighed by the other, more contemporaneous, lay and medical evidence of record, both in service and after service, and are not reliable. See Charles v. Principi, 16 Vet. App. 370 (2002). The Board finds that the statements of the Veteran as to continuous blood infection, lesions, tumors, neck disability, headaches, and right ankle/foot disability symptoms after service are not accurate because they are outweighed by other evidence of record that includes the more contemporaneous service treatment records which are negative for any findings or diagnoses of a blood infection, lesion, tumor, neck disability, or headaches, and show that the right ankle/foot disability resolved prior to separation in 2002, as well as the lack of any post-service documentation of treatment or diagnosis of a blood infection, lesions, tumors, neck disability, headaches, or right ankle/foot disability. Finally, the Board finds that the weight of the evidence demonstrates that there are no current disabilities manifested by a blood infection, lesions, tumors, neck disability, headaches, or a right ankle/foot disability. Namely, there is no post-service documentation of treatment or findings of these disabilities. Further, with regard to the right ankle/foot disability claim, the Veteran was afforded a VA examination in July 2011. He reported right ankle pain, weakness, stiffness, giving way, and lack of endurance. However, physical examination of the right ankle was completely normal, with full range of motion, even after repetition. There was no tenderness, edema, swelling, effusion, crepitation, or deformity. An x-ray study was normal. The VA examiner opined that no pathology was detected to render a diagnosis of a right ankle condition, as both x-ray and examination were normal. Further, the VA examiner noted there was no evidence of a right Achilles tendon strain on examination. Thus, the VA examiner opined that the 1996 injury to the right ankle and Achilles tendon was acute and self-limited, noting the current negative examination and the lack of any documentation of a chronic right ankle condition and treatment of a right ankle condition during service. The 2011 VA opinion is competent and probative medical evidence because it is factually accurate, and is supported by an adequate rationale. The VA examiner was informed of the pertinent evidence, reviewed the claims file, conducted a thorough physical examination and interview of the Veteran, and fully articulated the opinion. Accordingly, in light of the lack of post-service documentation of treatment or findings of a blood infection, lesions, tumors, neck disability, headaches, or a right ankle/foot disability, as well as the July 2011 VA opinion, the greater weight of the probative evidence is against finding that the Veteran has a current diagnosis of the claimed conditions. As a result, the claims for a blood infection, lesions, tumors, neck disability, headaches, and right ankle/foot disability must be denied. Indeed, in the absence of proof of a present disability there can be no valid claim. Brammer, 3 Vet. App. at 225. The Board recognizes that the Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). However, where the overall record fails to support a current diagnosis of the claimed disability, as is the case here, that holding would not apply. In sum, the weight of the competent evidence demonstrates no relationship between the Veteran's current claimed blood infection, lesions, tumors, neck disability, headaches, or right ankle/foot disability and his military service, including no credible evidence of an in-service disease or injury manifesting these conditions (with the exception of a right ankle and Achilles tendon injury that resolved prior to separation), unremitting symptoms of the claimed conditions during active service, unremitting symptoms of the conditions following service separation, or of a current disability. For these reasons, service connection for a blood infection, lesions, tumors, neck disability, headaches, and a right ankle/foot disability must be denied. As the preponderance of the evidence weighs against the Veteran's claim for service connection for these claimed conditions, the benefit of the doubt doctrine is not applicable, and the claim for service connection must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Increased Disability Rating for Low Back Strain Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2012). Where entitlement to compensation has already been established and 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). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made 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. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating 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 provided 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 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 40 percent disability rating is provided for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2) (See also Plate V) provides that, 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 are zero to 30 degrees, and left and right lateral rotation are 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 (3) provides that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range-of-motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range-of-motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range-of-motion is normal for that individual will be accepted. Note (4) instructs to round each range-of-motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a. The Diagnostic Codes for the spine are as follows: 5235 Vertebral fracture or dislocation; 5236 Sacroiliac injury and weakness; 5237 Lumbosacral or cervical strain; 5238 Spinal stenosis; 5239 Spondylolisthesis or segmental instability; 5240 Ankylosing spondylitis; 5241 Spinal fusion; 5242 Degenerative arthritis of the spine (see also DC 5003); 5243 Intervertebral disc syndrome. Intervertebral disc syndrome (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (effective September 26, 2003) provides a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range-of-motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that the pain actually sets in. See VAOPGCPREC 9-98. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to the affected joints. The intent of the rating 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 malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. 38 C.F.R. § 4.59. In this case, service connection for a low back strain with scoliosis was granted in an October 1989 rating decision. A 10 percent disability rating was assigned. The Veteran filed a request for an increased disability rating in November 2006. The RO denied the claim in the July 2007 rating decision that is the subject of this appeal. Currently, the 10 percent rating is assigned under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5237. The Veteran contends that his low back strain warrants a higher disability rating. After a review of all the evidence, lay and medical, in this Veteran's case, the Board finds that a preponderance of the evidence is against the claim for an increased disability evaluation in excess of 10 percent for service-connected low back strain with scoliosis for the rating period on appeal prior to July 14, 2011. However, for the period on appeal from July 14, 2011, forward, the evidence shows that the Veteran's thoracolumbar spine flexion was limited to 60 degrees, which more nearly approximates the criteria for a 20 percent rating under Diagnostic Code 5237, as discussed below. 38 C.F.R. § 4.71a. For the rating period prior to July 14, 2011, even with consideration of additional limitations of motion and function due to pain and other limiting factors, the Veteran's service-connected low back strain did not manifest forward flexion of the thoracolumbar spine 60 degrees or less, combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, as required for an evaluation in excess of 10 percent under the General Rating Formula for Diseases and Injuries of the Spine, or incapacitating episodes of intervertebral disc syndrome of at least 2 weeks in duration, for an evaluation in excess of 10 percent under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a. The Veteran was afforded a VA examination in June 2007. He reported constant low back pain with distribution to his legs. He rated the intensity of his pain at a two out of ten in severity. He stated that he took Motrin daily for the pain. The pain was aggravated with bending, standing, and squatting. He denied flare-ups as he had continuous pain. He stated he walked unaided and did not use a back brace. He denied any physician-prescribed bed rest in the past twelve months. He stated he was independent in his activities of daily living. On physical examination in June 2007, gait was normal and the Veteran could walk on his toes and heels. On palpation, there was no tenderness, weakness, or spasm. Forward flexion was to 70 degrees, both active and passive, with pain at the endpoints. Extension was to 30 degrees without pain. Bilateral lateral flexion was to 30 degrees without pain, as was bilateral lateral rotation. Repetitive range of motion did not change his range of motion. There was no muscle atrophy. Sensation was intact to pain, light touch, and vibration in both lower extremities. Muscle strength was five out of five. Straight leg raising test on the right side caused a pulling-type of pain at the right side of the back at 45 degrees, and on the left side of the back at 50 degrees. The VA examiner noted no obvious scoliosis. An x-ray study of the lumbosacral spine was negative. The VA examiner noted that it would be pure speculation to state whether there would be weakness, incoordination, lack of endurance, or change in range of motion during a flare-up (as the Veteran denied flare-ups). The VA examiner assessed a low back strain with scoliosis. After considering these findings as well as the lay evidence of record, the Board finds the assignment of an increased disability rating in excess of 10 percent for a low back strain is not warranted for the period prior to July 14, 2011, as the requirements of forward flexion of the thoracolumbar spine 60 degrees or less, combined range of motion of the thoracolumbar spine 120 degrees or less, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, or incapacitating episodes of intervertebral disc syndrome of at least 2 weeks in duration, have not been met or more nearly approximated at any time during the rating period on appeal prior to July 14, 2011. 38 C.F.R. § 4.71a, DCs 5235-5243. Flexion, at worst, was limited to 70 degrees, even with pain and following repetition. Combined range of motion was no worse than 220 degrees. Moreover, there was no muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour at the 2007 VA examination. Finally, the Veteran denied any incapacitating episodes, nor does the evidence suggest that he was ordered to bed rest by a physician. In reaching its finding that the evidence did not show flexion to 60 degrees or combined range of motion to 120 degrees or less for any period, the Board has considered any additional functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint in determining that a rating in excess of 10 percent is not warranted for the period on appeal prior to July 14, 2011. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. 202. Here, the Board notes the subjective evidence of pain at the endpoint of forward flexion testing at the 2007 VA examination, the Veteran's report of constant pain, and has considered additional limitations of motion due to pain or other orthopedic factors as limiting motion where the pain begins or where the evidence shows such factors limit functional use. See VAOPGCPREC 9-98 (painful motion is considered limited motion at the point that the pain actually sets in). Moreover, while the 2007 VA examiner noted subjective evidence of pain on active and passive range of motion testing; function and motion were not additionally limited after repetition. Thus, even after the pain on flexion is taken into consideration, the range of motion measurements still do not meet the criteria for the next higher rating. The specific clinical measures of ranges of motion, including examiner's findings and opinions regarding additional limitations of motion due to such factors, have been weighed and considered by the Board. Such specific measures and findings are of more probative value in determining specific ranges of motion than are general histories or general descriptions of symptoms of pain or limitations, such as this Veteran's report of pain on forward flexion. Thus, the overall evidence does not show that pain or other factors have resulted in additional functional limitation or limitation of motion (flexion to 60 degrees or less, combined range of motion 120 degrees or less, or muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour) such as to enable a finding that the disability picture more nearly approximates the next-higher, 20 percent, evaluation under the General Rating Formula for Diseases and Injuries of the Spine. While the Board understands the Veteran's central concern that he has a debilitating back disability, it is important for the Veteran to understand that a 10 percent evaluation indicates a significant impact on the Veteran's functional ability. Such a disability evaluation by VA recognizes the Veteran's painful limited motion, indicating generally a ten percent reduction in the Veteran's ability to function due to his back pain. The critical question in this case, however, is whether the problems the Veteran has believably cited meet the next highest level under the rating criteria. For reasons cited above, they do not, for the rating period prior to July 14, 2011. Without taking into consideration the problems associated with this disability, the 10 percent disability evaluation could not be justified, let alone a higher evaluation. As discussed above, the criteria for a 10 percent evaluation under the General Rating Formula for Diseases and Injuries of the Spine is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, the 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. Thus, based on the above findings, the preponderance of the evidence demonstrates the criteria for an increased disability evaluation higher than 10 percent are not met for the period on appeal prior to July 14, 2011, as range of motion findings, even after repetition, do not meet the criteria for the next-higher, 20 percent, rating category - flexion to 60 degrees or less or combined range of motion to 120 degrees of less - even when taking into account additional loss of motion due to DeLuca factors. Moreover, even with such factors, there is no muscle spasm or guarding severe enough to result in abnormal gait or spinal contour. For these reasons, the Board finds that an increased disability rating in excess of 10 percent is not warranted for the period prior to July 14, 2011. Next, after reviewing all the lay and medical evidence of record, the Board finds that the evidence is at least in equipoise as to whether the criteria for an increased evaluation of 20 percent have been met for the rating period on appeal from July 14, 2011, forward. The evidence shows that the Veteran's thoracolumbar spine flexion was limited to 60 degrees with pain at the end of range of motion, which more nearly approximates the criteria for a 20 percent rating under Diagnostic Code 5237, as discussed below. 38 C.F.R. § 4.71a. The Veteran was afforded another VA examination in July 2011. He again reported constant low back pain with distribution to the right leg. He stated the pain was mild to moderate in severity. He denied physician-prescribed bed rest in the past year. He also denied flare-ups of pain, as his pain was continuous. The pain was aggravated with lifting, carrying, and moving heavy objects. The Veteran also reported difficulty climbing up and down ladders and digging in the ground due to back pain. Prolonged standing and walking also aggravated the pain. He also reported stiffness, fatigue, spasm, weakness, decreased motion, and paresthesias and numbness of the right leg. He stated the back condition did not interfere with activities of daily living, including eating, grooming, bathing, toileting, and dressing. On physical examination in July 2011, gait was normal and the Veteran could walk on his toes and heels. There was no evidence of kyphosis or scoliosis. He had flat lumbar lordosis. There was no evidence of paraspinal lumbar muscle spasm, tenderness, painful motion, weakness, atrophy, or guarding. Forward flexion was to 60 degrees with discomfort and pain at the endpoint. Extension was to 25 degrees with discomfort at the endpoint. Left and right lateral flexion was to 30 degrees with discomfort at the endpoint. Left and right lateral rotation was to 30 degrees with discomfort at the endpoint. More than three repetitive range of motion tests did not change his range of motion. There was objective evidence of painful motion without spasm, weakness, tenderness, atrophy, or guarding. Sensation was intact to pain, light touch, temperature, and vibration in both lower extremities. Muscle strength was five out of five. Straight leg raising test was negative, and there was no muscle atrophy. The VA examiner stated it would be pure speculation to state whether there would be pain, weakness, incoordination, lack of endurance, or change in range of motion with flare-ups (as the Veteran denied flare-ups of pain). An x-ray study revealed minimal degenerative changes and minimal thoracolumbar scoliosis. The VA examiner assessed a lumbosacral chronic strain with scoliosis. Based upon these findings and the lay evidence of record, the Board finds the evidence is at least in relative equipoise as to whether an increased 20 percent rating for a low back strain is warranted for the period from July 14, 2011, forward. As noted above, at the 2011 VA examination, forward flexion was to 60 degrees, which falls within the criteria for the next higher 20 percent rating. Resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for an increased rating of 20 percent for a low back strain with scoliosis have been met for the period from July 14, 2011, forward. Next, the Board has considered whether an increased disability rating in excess of 10 percent prior to July 14, 2011, and in excess of 20 percent from July 14, 2011, forward, is warranted under Diagnostic Code 5243 based on incapacitating episodes. As previously mentioned, Diagnostic Code 5243 deals with IVDS, which can include the degenerative changes observed on the Veteran's x-ray studies. However, in order to meet the criteria for a compensable rating under this diagnostic code, the evidence must show that a physician ordered bed rest to treat the disorder. In this case, the Veteran has consistently denied any incapacitating episodes due to his low back disability. Moreover, there are no physician's orders or other evidence in the claims file that the Veteran's doctors prescribed bed rest; therefore, he does not meet the criteria for a higher rating under DC 5243. The Board has also considered whether any alternate diagnostic codes might serve as a basis for an increased rating for any part of the rating period on appeal. In this regard, the RO rated the Veteran's back disability under Diagnostic Code 5237, which addresses lumbosacral strain. Diagnostic Code 5003 addresses degenerative arthritis. In this case, the maximum evaluation possible under Diagnostic Code 5003 is 10 percent, as only one major joint or group of minor joints is involved in this claim. Thus, it does not allow for a higher evaluation. Diagnostic Code 5242 is potentially applicable as it addresses degenerative arthritis of the spine. However, disabilities evaluated under this code are evaluated under the General Rating Formula for Diseases and Injuries of the Spine, as discussed above. There are no other applicable codes available for consideration. The Board has also contemplated whether any separate evaluations are applicable here for additional disability or neurological disorders associated with the service-connected back disability. Although the Veteran reported pain and paresthesias in his legs, sensory and neurological examination of the lower extremities has been normal, and the Veteran has not been diagnosed with radiculopathy or any other neurological disorder of the lower extremities. Moreover, there have been no other reports of other disabilities associated with the back disability. Finally, there is no evidence that the manifestations of the Veteran's service-connected lumbar spine disability are unusual or exceptional to demonstrate that the rating schedule is inadequate for determining the proper level of disability. The symptoms documented in the claims file are fully contemplated under the 20 percent evaluation under the applicable Diagnostic Code. See Thun v. Peake, 22 Vet. App 111, 115-16 (2008). The 20 percent evaluation contemplates impairment in flexion and functional loss. The rating criteria reasonably describe the Veteran's disability level and symptomatology for his service-connected disability at this level. Accordingly, the schedular evaluation is not inadequate and referral of this case for consideration of an extra-schedular rating is not warranted. Id. For these reasons, the Board finds that the weight of the evidence is against a finding of an increased disability evaluation in excess of 10 percent for a low back strain with scoliosis for the period prior to July 14, 2011. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. However, a 20 percent disability evaluation is warranted for the period from July 14, 2011, forward. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that 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 a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment and earning capacity, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). In a timely February 2007 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, what information and evidence must be submitted by the Veteran, and what information or evidence VA will attempt to obtain. Further, the Veteran was informed of the requirements needed to establish an increased evaluation for a low back strain. The notice letter advised the Veteran that VA used a published schedule for rating disabilities that determined the rating assigned and that evidence considered in determining the disability rating included the nature and symptoms of the condition, the severity and duration of the symptoms, and the impact of the condition and symptoms on employment. In addition, the letter described how VA determines disability ratings and effective dates. Further, a July 2008 letter contained the specific schedular rating criteria that would be used to evaluate the Veteran's low back strain. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, National Guard treatment records, a VA opinion with regard to the right ankle/foot claim, and the Veteran's statements. The Veteran stated that he had treatment at several VA Medical Centers; however, in response to VA's request for those records, the VA medical facilities provided negative responses. Further requests for those records would be futile. A VA opinion was obtained in July 2011 with regard to the question of whether the Veteran has a right ankle or foot disability that is related to active service. To that end, 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 July 2011 VA opinion obtained in this case is adequate as to the question of whether the Veteran has a current right ankle or foot disability that is related to active service. The opinion was predicated on a full reading of the private and VA medical records in the Veteran's claims file, as well as a complete physical examination of the Veteran. The VA opinion considered all of the pertinent evidence of record, to include VA treatment records, comprehensive physical examinations, and the statements of the Veteran, and provides a complete rationale for the opinion stated, 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 right ankle/foot claim has been met. 38 C.F.R. § 3.159(c)(4). The Veteran has been afforded an adequate examination on the issue of an increased rating for service-connected low back strain. VA provided the Veteran with examinations in June 2007 and July 2011. The Veteran's history was taken, and complete examinations with clinical measures were conducted, to include x-ray studies. Conclusions reached and diagnoses given were consistent with the examination report, including notation of whether there were additional losses of ranges of motion due to factors such as painful motion, weakness, impaired endurance, incoordination, or instability. For these reasons, the Board finds that the Veteran has been afforded an adequate examination on the issue of an increased rating for service-connected low back strain. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board acknowledges that the Veteran has not been afforded VA medical examinations specifically geared to the claimed service connection for a blood infection, lesions, tumors, a neck disability, or headaches; however, the Board finds that VA examinations are not necessary in order to decide these issues. Two pivotal Court cases exist that address the need for a VA examination. Those are Duenas v. Principi, 18 Vet. App. 512 (2004) and McLendon v. Nicholson, 20 Vet. App. 79 (2006). In McLendon, the Court held that in disability compensation claims, the Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurring symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on a claim. In Duenas, the Court held that a VA examination is necessary when the record: (1) contains competent evidence that the veteran has persistent or recurrent symptoms of the claimed disability, and (2) indicate that those symptoms may be associated with her active military service. In this case, the Veteran's service treatment records are negative for any complaints of or treatment for a blood infection, lesions, tumors, a neck disability, or headaches. Thus, the weight of the evidence demonstrates that the Veteran did not sustain an injury, disease, or event relating to these conditions in service, and there is no duty to provide a VA medical examination. See Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that that where the evidence has failed to establish an in-service injury, disease, or event, VA is not obligated to provide a medical examination). As explained in this decision, the Board also finds that the weight of the evidence demonstrates no unremitting symptoms of a blood infection, lesions, tumors, neck disability, or headaches in service and no unremitting symptoms of these conditions since service separation. Because there is no in-service injury or disease to which a competent medical opinion could relate the current disability, there is no reasonable possibility that a VA examination or opinion could aid in substantiating the current claim for service connection for a blood infection, lesions, tumors, a neck disability, or headaches. See 38 U.S.C.A. § 5103A(a)(2) (VA "is not required to provide assistance to a claimant . . . if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is "no reasonable possibility that further assistance would substantiate the claim"). Further, as discussed above, the Board finds that the weight of the evidence demonstrates no current disability manifesting a blood infection, lesion, tumor, neck disability, or headaches. The Board has considered the decision in Charles, 16 Vet. App. at 374-75; however, in the absence of evidence of an in-service disease or injury, referral of this case to obtain an examination and/or an opinion as to the etiology of any blood infection, lesion, tumor, neck disability, or headaches would in essence place the examining physician in the role of a fact finder, would suggest reliance on an inaccurate history of occurrence of an in-service injury or disease, and could only result in a speculative opinion or purported opinion of no probative value. In other words, any medical opinion which purported to provide a nexus between the claimed blood infection, lesion, tumor, neck disability, or headaches and military service would necessarily be based on an inaccurate history regarding what occurred in service, so would be of no probative value. The Court has held on a number of occasions that a medical opinion premised upon an unsubstantiated account of a claimant is of no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant that have been previously rejected). The holding in Charles was clearly predicated on the existence of evidence of an in-service injury, disease, or event and a current diagnosis. Referral of this case for an examination or to obtain a medical opinion would be a useless act. The duty to assist by providing a VA examination or opinion is not invoked in this case because there is no reasonable possibility that such assistance would aid in substantiating the claims. See 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). Notably, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Service connection for a blood infection is denied. Service connection for lesions is denied. Service connection for tumors is denied. Service connection for a neck disability, claimed as neck pain, is denied. Service connection for headaches is denied. Service connection for a right ankle disability, to include Achilles' tendonitis, claimed as right foot pain, is denied. An increased disability evaluation in excess of 10 percent for a low back strain with scoliosis is denied for the rating period prior to July 14, 2011. An increased 20 percent disability evaluation for a low back strain with scoliosis is granted for the rating period from July 14, 2011, forward, subject to the rules governing payment of monetary benefits. REMAND In a January 2012 rating decision, the RO granted service connection for bilateral hearing loss, tinnitus, and degenerative joint disease of the right knee. The Veteran filed a timely notice of disagreement (NOD) as to the initial ratings assigned in February 2012. In addition, in an August 2012 rating decision, the RO severed service connection for right knee degenerative joint disease. The Veteran filed a timely NOD as to the severance of service connection the same month. However, the Veteran has not been furnished a Statement of the Case (SOC) which addresses the issues of entitlement to higher initial disability ratings for bilateral hearing loss, tinnitus, and right knee degenerative joint disease, or the propriety of severance of the award of service connection for right knee degenerative joint disease. In such cases, the appellate process was initiated by the NODs, and the appellant is entitled to an SOC on the issues. See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the issues of entitlement to higher initial disability ratings for bilateral hearing loss, tinnitus, and right knee degenerative joint disease and propriety of severance of the award of service connection for right knee degenerative joint disease must be remanded to the RO for additional action. The RO should consider the issues of entitlement to higher initial disability ratings for bilateral hearing loss, tinnitus, and right knee degenerative joint disease and the propriety of severance of the award of service connection for right knee degenerative joint disease; if the benefits sought cannot be granted, the RO should issue a statement of the case in accordance with applicable law and regulations. The RO should also assure that all VCAA notice and assistance requirements are satisfied. The Veteran should be informed of the period of time within which he must file a substantive appeal to perfect his appeal to the Board concerning these issues. 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). ______________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs