Citation Nr: 1325584 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 06-16 168 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a disability rating greater than 10 percent for residuals of a right foot injury. 2. Entitlement to service connection for a right knee and leg disability, to include as due to service-connected residuals of a right foot injury. 3. Entitlement to service connection for a left knee and leg disability, to include as due to a right knee and leg disability or service-connected residuals of a right foot injury. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from August 1980 to February 1981 and additional U.S. Air Force National Guard (ANG) service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied the Veteran's claims of service connection for a right knee and leg disability, to include as due to service-connected residuals of a right foot injury (which was characterized as right knee (also claimed as leg condition)), and for a left knee and leg disability, to include as due to a right knee and leg disability or service-connected residuals of a right foot injury (which was characterized as left knee (also claimed as leg condition)). The RO also denied the Veteran's claim for a disability rating greater than 10 percent for residuals of a right foot injury. A Travel Board hearing was held at the RO in April 2011 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. In July 2011, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. The Board noted in its July 2011 remand that the Veteran's appeal for a disability rating greater than 10 percent for residuals of a right foot injury came from a September 2010 rating decision. See also Percy v. Shinseki, 23 Vet. App. 37 (2009). Thus, the issues on appeal are as stated on the title page of this decision. The issue of entitlement to service connection for hearing loss has been raised by the record but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). The Board notes that it referred this claim to the AOJ (in this case, the RO) in its July 2011 remand. To date, it does not appear that the RO has adjudicated this claim. Therefore, the Board does not have jurisdiction over this claim and it is referred again to the AOJ for appropriate action. The issues of entitlement to service connection for a right knee and leg disability, to include as due to service-connected residuals of a right foot injury, and for a left knee and leg disability, to include as due to a right knee and leg disability or service-connected residuals of a right foot injury, are addressed in the REMAND portion of the decision below and are REMANDED again to the RO/AMC. VA will notify the Veteran if further action is required on her part. FINDING OF FACT The record evidence shows that the Veteran's service-connected residuals of a right foot injury are not manifested by moderately severe or severe foot injury. CONCLUSION OF LAW The criteria for a disability rating greater than 10 percent for residuals of a right foot injury have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5003, 5024, 5284 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In letters issued in October 2009, September 2011, and in August 2012, VA notified the Veteran of the information and evidence needed to substantiate and complete her claim, including what part of that evidence she was to provide and what part VA would attempt to obtain for her. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). These letters informed the Veteran to submit medical evidence showing that her service-connected residuals of a right foot injury had worsened. The Veteran also was informed of when and where to send the evidence. After consideration of the contents of these letters, the Board finds that VA has satisfied substantially the requirement that the Veteran be advised to submit any additional information in support of her claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Court previously held that to satisfy the first Quartuccio element for an increased compensation claim, section 5103(a) compliant notice must meet a four-part test laid out in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The United States Court of Appeals for the Federal Circuit (Federal Circuit) overruled Vazquez-Flores in part, striking the claimant-tailored and "daily life" notice elements. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Court issued an opinion incorporating those surviving portions of the first Vazquez-Flores decision, namely that VA must notify the claimant that 1) to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability, 2) a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment, and 3) provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation, and must also notify the claimant that to substantiate such a claim the claimant should provide or ask the Secretary to obtain medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 107 (2010) (Vazquez-Flores III). For the following reasons, the Board finds that the elements of the Vazquez-Flores test that remain under Vazquez-Flores III either have been met in this case or that any error in not providing such notice is not prejudicial to the Veteran. The first and third elements were met by the August 2012 VCAA notice letter. This letter informed the Veteran that she needed to provide information showing her service-connected disability had worsened. She was informed that such evidence could be a statement from her doctor or lay statements describing what individuals had observed about her disability. She was told that she needed to provide VA information as to where she had received medical treatment or that she could send VA any pertinent treatment records. Examples of evidence needed to support the claim were provided, including laboratory tests, examinations, and statements from other individuals who could describe from their knowledge and personal observations the manner in which her disability had worsened. She also was informed of what evidence VA would obtain on her behalf and what she needed to do to help VA process her claim. The Veteran also has submitted personal statements and lay statements from others with respect to her service-connected disability. As the Board finds the Veteran had actual knowledge of the requirement to show worsening of the disability and the variety of the medical and lay evidence which could support her claim, any failure to provide her with adequate notice as to the first and third Vazquez-Flores elements is not prejudicial. As to the second element of Vazquez-Flores notice, the Board acknowledges that the Veteran was not provided notice that a disability rating would be determined by application of the ratings schedule and relevant diagnostic codes based on the extent and duration of the signs and symptoms of her disability and their impact on her employment. See Vazquez-Flores III, 24 Vet. App. at 107. The Veteran received a statement of the case in November 2010 and a supplemental statement of the case in September 2012 addressing his claim. Specific VCAA notice to the Veteran of the ratings schedule to be applied to the symptomatology of her disability is unnecessary in light of repeated correspondence sent to the Veteran by the RO/AMC describing the Rating Schedule and applying the relevant regulations to her claim. The Board finds that the Veteran was on constructive notice of the existence and function of the Ratings Schedule. The Board further finds that any error in the third element of Vazquez-Flores notice is not prejudicial. In summary, the Board concludes that the Veteran was notified and aware of the evidence needed to substantiate her claim, as well as the avenues through which she might obtain such evidence, and of the allocation of responsibilities between herself and VA in obtaining such evidence. As will be explained below in greater detail, the evidence does not support granting an increased rating for residuals of a right foot injury. Because the Veteran was fully informed of the evidence needed to substantiate her claim, any failure of the RO to notify the Veteran under the VCAA cannot be considered prejudicial. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The claimant also has had the opportunity to submit additional argument and evidence and to participate meaningfully in the adjudication process. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). With respect to the timing of the notice, the Board points out that the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the October 2009 letter was issued prior to the currently appealed rating decision issued in September 2010; thus, this notice was timely. Because the Veteran's claim is being denied in this decision, any question as to the appropriate disability rating or effective date is moot and there can be no failure to notify the Veteran. See Dingess, 19 Vet. App. at 473. And any defect in the timing or content of the notice provided to the Veteran has not affected the fairness of the adjudication. See Mayfield, 444 F.3d at 1328. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording her the opportunity to give testimony before the Board. It appears that all known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file. The Veteran's Virtual VA claims file has been reviewed. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ noted the basis of the prior determination and noted the element of the claim that was lacking to substantiate the claim for benefits. The VLJ specifically noted the issues as including entitlement to a disability rating greater than 10 percent for residuals of a right foot injury. The Veteran was assisted at the hearing by an accredited representative from the Disabled American Veterans. The representative and the VLJ then asked questions to ascertain whether the Veteran had submitted evidence in support of this claim. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. The representative specifically asked the Veteran about any worsening of her service-connected disability. Moreover, neither the Veteran nor her representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the element necessary to substantiate the claim and the Veteran, through her testimony, demonstrated that she had actual knowledge of the element necessary to substantiate her claim for benefits. The Veteran's representative and the VLJ asked questions to draw out the evidence which demonstrated worsening of the service-connected residuals of a right foot injury, the only element of the claim in question. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that any error in notice provided during the Veteran's hearing constitutes harmless error. In undated letter received by the RO after January 2012, the Joint Forces Headquarters, Alabama National Guard, notified VA that the Veteran's service personnel records could not be located. The Veteran subsequently was notified in the September 2012 supplemental statement of the case that these records could not be obtained by VA. In cases where the Veteran's service treatment records (or other pertinent records, for that matter) are unavailable through no fault of the claimant, there is a heightened obligation to assist the claimant in the development of his or her case. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). VA also must provide an explanation to the Veteran regarding VA's inability to obtain his or her service treatment records. Dixon v. Derwinski, 3 Vet. App. 261 (1992). The Court also has held that VA's efforts to obtain service department records shall continue until the records are obtained or unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999); see also McCormick v. Gober, 14 Vet. App. 39 (2000). The Board notes in this regard that obtaining the Veteran's service personnel records would not affect her currently appealed increased rating claim for residuals of a right foot injury as such evidence is not relevant to this claim. Nevertheless, after reviewing the record evidence, the Board finds that it is reasonably certain that the Veteran's service personnel records from the Alabama National Guard do not exist and further efforts to obtain them would be futile. The Veteran also has been provided with VA examinations which address the current nature and severity of her service-connected residuals of a right foot injury. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Given that the pertinent medical history was noted by the examiners, these examination reports set forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations. In this regard, the Board notes that there has been substantial compliance with the Board's remand instructions. The Board notes that the 2012 VA examination report provided sufficient information so that an adjudication of the appeal could go forward. Thus, the Board finds the examinations of record are adequate for rating purposes and an additional examination is not necessary regarding the claim adjudicated in this decision. See also 38 C.F.R. §§ 3.326, 3.327, 4.2. In summary, VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA. Increased Rating for Residuals of a Right Foot Injury The Veteran contends that her service-connected residuals of a right foot injury are more disabling than currently evaluated. She specifically contends that she experiences daily pain in her right foot. In general, disability evaluations are assigned by applying a schedule of ratings that represent, as far as can be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria that must be met for specific ratings. The regulations require that, in evaluating a given disability, the disability be viewed in relation to its whole recorded history. 38 C.F.R. § 4.2; see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The Veteran's service-connected residuals of a right foot injury currently are evaluated as 10 percent disabling by analogy to 38 C.F.R. § 4.71a, DC 5024 (tenosynovitis). See 38 C.F.R. § 4.71a, DC 5024 (2012). The Rating Schedule provides that DC 5024 will be rated as degenerative arthritis (under DC 5003). DC 5003 provides that degenerative arthritis established by x-rays will be rated on the basis of limitation of motion under the appropriate Diagnostic Codes (DC) for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is non-compensable under the appropriate DC, then a 10 percent rating is assigned for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under DC 5003. Limitation of motion must be confirmed by objective finding such as swelling, muscle spasm, or satisfactory evidence of painful motion. Absent limitation of motion, DC 5003 provides a 10 percent rating for degenerative arthritis with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A maximum 20 percent rating is assigned under DC 5003 for degenerative arthritis with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations. Note (1) to DC 5003 provides that these ratings will not be combined with ratings based on limitation of motion. Note (2) to DC indicates that these ratings will not be used in rating conditions listed under DC's 5013-5024, including tenosynovitis (as in this case). See 38 C.F.R. §§ 4.71a, DC's 5003, 5024 (2012). The Veteran's service-connected residuals of a right foot injury may be evaluated under DC 5284 (other foot injuries). See 38 C.F.R. § 4.71a, DC 5284 (2012). DC 5284 provides a 10 percent rating for moderate foot injuries. A higher 20 percent rating is assigned for moderately severe foot injuries. A maximum 30 percent rating is assigned for severe foot injuries. Id. The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2012). Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 38 C.F.R. § 4.40 (2012). Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. VA must consider "functional loss" of a musculoskeletal disability separately from consideration under the diagnostic codes; "functional loss" may occur as a result of weakness, fatigability, incoordination or pain on motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). VA must consider any part of the musculoskeletal system that becomes painful on use to be "seriously disabled." If a Veteran has separate and distinct manifestations relating to the same injury, he should be compensated under different diagnostic codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). The evaluation, however, of the same manifestation under different diagnostic codes is to be avoided. 38 C.F.R. § 4.14 (2012). The Rating Schedule may not be employed as a vehicle for compensating a claimant twice or more for the same symptomatology, since such a result would overcompensate the claimant for the actual impairment of his earning capacity and would constitute pyramiding. See Esteban, citing Brady v. Brown, 4 Vet. App. 203 (1993). Under 38 C.F.R. §§ 4.40 and 4.45, a Veteran's pain, swelling, weakness, and excess fatigability must be considered when determining the appropriate evaluation for a disability using the limitation of motion diagnostic codes. See Johnson v. Brown, 9 Vet. App. 7, 10 (1996). The Court held in DeLuca that all complaints of pain, fatigability, etc., shall be considered when put forth by a Veteran. Therefore, consistent with DeLuca and 38 C.F.R. § 4.59, the Veteran's complaints of pain have been considered in the Board's review of the diagnostic codes for limitation of motion. Factual Background The recent evidence shows that, in an October 2009 statement, the Veteran essentially contended that her residuals of a right foot injury had worsened. She specifically asserted that her right foot was "stiff and painful when constantly moving." On VA feet examination in November 2009, the Veteran's complaints included right foot pain, swelling, and stiffness while standing, walking, and at rest, and right foot fatigability, weakness, and lack of endurance while standing and walking. The Veteran stated that rest partially relieved her right foot problems. She also took pain medication for her right foot pain. She denied experiencing any heat or redness in the right foot. Her right foot swelling was located at the dorsum/ankle. Her right foot stiffness resulted in foot and leg cramps. She experienced flare-ups of foot joint disease 1-3 times a month which lasted for less than 1 day and were relieved by resting. She reported experiencing 60 percent limitation of motion of the right foot during flare-ups. She was unable to stand for more than 15-30 minutes or walk more than a few yards. She used an orthotic insert and a brace for her foot and ankle pain. Physical examination of the right foot in November 2009 showed no evidence of swelling, instability, or abnormal weightbearing, and an antalgic gait "with weight bearing to the left," and objective evidence of tenderness in the lateral dorsum. There also was no hallux valgus or rigidus, hammertoes, pes cavus, malunion or non-union of the tarsal or metatarsal bones, flat foot, muscle atrophy of the foot, or other foot deformity. X-rays of the right foot showed mild first metatarsophalangeal joint degenerative changes, no acute fractures or dislocations, and plantar calcaneal enthesopathic changes. The radiologist's impression was mild degenerative changes. The Veteran had been employed full-time as a secretary for more than 20 years and had not lost any time from work in the previous 12 months. The VA clinician stated that the Veteran's right foot problems were not congenital or developmental. She also stated that the Veteran's right foot disability resulted in decreased mobility, weakness or fatigue, and pain. The diagnoses were right foot strain, mild right first metatarsophalangeal joint degenerative changes, and right plantar calcaneal enthesopathic changes. In an October 2010 statement, the Veteran asserted that she was "constantly in pain and it is becoming more and more of a problem on my job" due to her service-connected residuals of a right foot injury. She also asserted that her right foot disability "has caused me to favor my right side and shifted to my left." On VA outpatient treatment in December 2010, the Veteran complained of foot pain. No physical examination was conducted. The assessment included foot pain. The Veteran was referred to podiatry for a reassessment of her orthotics. In March 2011, the Veteran's complaints included "aching, occasional sharp pain outside of" her right ankle. She reported using orthotics, various braces, and physical therapy to treat this problem. Objective examination showed pain on palpation over the ATF ligament area and the sinus tarsi of the right foot. X-rays were unremarkable. The assessment included sinus tarsitis of the right foot and pronation. The VA clinician stated that, based on the Veteran's physical examination and x-rays, he "would not recommend bracing at this point and encouraged strengthening exercises, which she has done in the past." The Veteran also was advised to use her orthotics daily "to control motion" and to return to the VA clinic as needed. The Veteran testified at her April 2011 Board hearing that her service-connected residuals of a right foot injury caused problems in both of her knees and legs. See Board hearing transcript dated April 18, 2011, at pp. 22-23. She also testified that she had severe right foot pain and took Ibuprofen to treat this problem "maybe twice a week." Id., at pp. 33. She testified further that, although she did not climb stairs at the school where she worked due to her residuals of a right foot injury, she had not lost any work time because of this service-connected disability. Id., at pp. 34-35. She also testified further that she experienced occasional right foot swelling as a result of her service-connected residuals of a right foot injury. Id., at pp. 35-36. On VA outpatient treatment in July 2011, the Veteran's complaints included right foot pain which she rated as 7/10 on a pain scale (with 10/10 being the worst imaginable pain) as a baseline. She stated that her right foot pain "can be reduced to 3 with Motrin, and motion of foot might precipitate" a flare-up of pain. It was noted that her right foot "remains problematic even with use of the orthotics." In September 2011, no relevant complaints were noted. The Veteran "reports not wearing her orthotics today." She took Ibuprofen for her pain "which helps." Physical examination showed pain on palpation of the peroneal tendon, "worse at the insertion of the peroneus brevis on the" fifth metatarsal head, and minimal pain on palpation over the ATF ligament and sinus tarsi of the right foot. The assessment included peroneal tendonitis, left greater than right. On VA foot Disability Benefits Questionnaire (DBQ) in August 2012, the Veteran complained of worsening right foot pain "over the years" despite treatment. A diagnosis of peroneal tendonitis was noted. It also was noted that, when the Veteran was discharged from a recent round of VA physical therapy in 2011, she had "responded well to treatment." The Veteran reported that she worked as a secretary and "long periods of immobility make[] her foot feel stiff." She took NSAIDS as needed and "is not currently seeking or receiving treatment for her foot condition." Physical examination showed no Morton's neuroma, metatarsalgia, hammer toes, hallux valgus, hallux rigidus, acquired claw foot, malunion or non-union of the tarsal or metatarsal bones, other foot injuries, or bilateral weak foot. The Veteran did not use any assistive devices for ambulation although it was noted that the Veteran "states she was once prescribed a cane. She is not using a cane today and is ambulating without difficulty." X-rays showed a small heel spur. The VA examiner stated that the Veteran's foot condition did not impact her ability to work. The diagnosis was peroneal tendonitis which had been diagnosed in 2011. Analysis The Board finds that the preponderance of the evidence is against the Veteran's claim for a disability rating greater than 10 percent for her service-connected residuals of a right foot injury. The Veteran contends that this disability is more disabling than currently evaluated and causes her daily right foot pain. The record evidence does not support her assertions concerning an objective worsening of this service-connected disability, however. It shows instead that the Veteran does not experience moderately severe or severe foot injuries as a result of her service-connected residuals of a right foot injury such that a disability rating greater than 10 percent is warranted under DC 5284. See 38 C.F.R. § 4.71a, DC 5284 (2012). (As noted above, although DC 5024 is listed as the DC for the Veteran's service-connected residuals of a right foot injury, this disability is evaluated under DC 5284 because it involves other foot injuries.) For example, VA examination in November 2009 showed no evidence of swelling, instability, or abnormal weightbearing, and only an antalgic gait and objective evidence of tenderness in the lateral dorsum. There also was no hallux valgus or rigidus, hammertoes, pes cavus, malunion or non-union of the tarsal or metatarsal bones, flat foot, muscle atrophy of the foot, or other foot deformity. X-rays of the right foot showed only mild degenerative changes. VA outpatient treatment in March 2011 showed only pain on palpation over the ATF ligament area and the sinus tarsi of the right foot. X-rays of the right foot were unremarkable. The Veteran testified in April 2011 that she had not lost any work time due to her service-connected residuals of a right foot injury although she avoided climbing stairs at work. This suggests that she experiences no more than moderate right foot disability. She also reported on VA outpatient treatment in July 2011 that her right foot pain was reduced from 7/10 to 3/10 on a pain scale with Motrin although it was noted that her right foot "remains problematic even with use of the orthotics." Although pain was noted in the bilateral peroneal tendons of the feet in September 2011, this pain was greater in the Veteran's non-service-connected left foot than in her service-connected right foot. The Veteran stated at her most recent VA examination in August 2012 that she "is not currently seeking or receiving treatment for her [right] foot condition." She ambulated without difficulty although she reported using a cane for ambulation in the past. The VA examiner concluded that the Veteran's right foot condition (which he diagnosed as peroneal tendonitis originally diagnosed in 2011) did not impact her ability to work. The Board recognizes that the Veteran currently experiences pain and stiffness in the right foot which she attributes to her service-connected residuals of a right foot injury. There is no indication in the record evidence (in this case, VA outpatient treatment records and examination reports) that this pain and stiffness has resulted in either moderately severe or severe foot injuries such that an increased rating for the Veteran's service-connected residuals of a right foot injury is warranted under DC 5284. Id. The Veteran also has not identified or submitted any competent evidence which demonstrates that she experiences moderately severe or severe foot injuries such that she is entitled to an increased rating for her service-connected residuals of a right foot injury under DC 5284. Moreover, the 2012 examiner stated that the findings on x-rays are more likely than not secondary to obesity and aging. The examiner noted that the Veteran was 55 and weighed 225 pounds. The examiner concluded that the x-ray today would not be caused by a fall like the one the Veteran alleged took place while in service. This evidence weighs against a finding that the Veteran's residuals of a right foot injury results in a moderately severe or severe foot disability. In summary, the Board finds that the Veteran is not entitled to consideration of an increased rating for her service-connected residuals of a right foot injury. Id. The Board finally finds that, because the Veteran has experienced the same level of disability due to her service-connected residuals of a right foot injury throughout the pendency of this appeal, consideration of staged ratings is not required. See Hart, 21 Vet. App. at 505. Extraschedular The Board must consider whether the Veteran is entitled to consideration for referral for the assignment of an extraschedular rating for her service-connected residuals of a right foot injury. 38 C.F.R. § 3.321; Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the Veteran or reasonably raised by the record). An extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. The Board finds that schedular evaluation assigned for the Veteran's service-connected residuals of a right foot injury is not inadequate in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of this disability. This is especially true because the 10 percent rating currently assigned for the Veteran's residuals of a right foot injury contemplates moderate foot injuries. Moreover, the evidence does not demonstrate other related factors such as marked interference with employment and frequent hospitalization. It appears that the Veteran has been employed throughout the pendency of this appeal. She reported on VA examination in November 2009 that she had not lost any work time due to her service-connected residuals of a right foot injury in the previous 12 months. The August 2012 VA examiner subsequently concluded that the Veteran's service-connected residuals of a right foot injury did not interfere with her ability to work. It also appears that the Veteran has not been hospitalized as a result of her service-connected residuals of a right foot injury at any time during the pendency of this appeal. In light of the above, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Entitlement to a disability rating greater than 10 percent for residuals of a right foot injury is denied. REMAND The Veteran contends that she incurred a right knee and leg disability during active service or, alternatively, her service-connected residuals of a right foot injury caused or contributed to her current right knee and leg disability. The Veteran also contends that she incurred a left knee and leg disability during active service. She further contends that her right knee and leg disability or her service-connected residuals of a right foot injury caused or contributed to her current left knee and leg disability. Unfortunately, after reviewing the record evidence, the Board finds that additional development is required before these claims can be adjudicated on the merits. In its most recent remand in July 2011, the Board directed that the RO/AMC schedule the Veteran for updated VA examination to determine the nature and etiology of her bilateral knee and leg disabilities. As part of this examination, the Board specifically directed that: The examiner should thereafter opine, whether it is at least as likely as not (50 percent or more probability) that any identified right knee/leg disorder had its onset during the Veteran's active service, any period of ACDUTRA, or if she sustained an injury during INACDUTRA causing her right knee/leg disorder, or is otherwise etiologically related to a period of active duty or ACDUTRA/ INACDUTRA.... The examiner should thereafter opine, whether it is at least as likely as not (50 percent or more probability) that any identified left knee/leg disorder had its onset during the Veteran's active service, any period of ACDUTRA, or if she sustained an injury during INACDUTRA causing her left knee/leg disorder, or is otherwise etiologically related to a period of active duty or ACDUTRA/ INACDUTRA... The examiner should additionally review the Veteran's claims file and determine whether the Veteran's current right knee/leg disorder was at least as likely as not (a 50 percent probability or greater) caused or aggravated by the Veteran's service-connected residuals of a right foot injury. The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. If aggravation is present, the examiner should indicate, to the extent possible, the approximate level of severity of the right knee/leg disorder (i.e., a baseline) before the onset of the aggravation.... The examiner should additionally review the Veteran's claims file and determine whether the Veteran's current left knee/leg disorder was at least as likely as not (a 50 percent probability or greater) caused or aggravated by the Veteran's service-connected residuals of a right foot injury and/or right knee and leg disorder . The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. If aggravation is present, the examiner should indicate, to the extent possible, the approximate level of severity of the left knee/leg disorder (i.e., a baseline) before the onset of the aggravation. See Board decision dated July 28, 2011, at pp. 13-15 (emphasis added). Unfortunately, a review of the Veteran's August 2012 VA knee and lower leg conditions DBQ shows that the VA examiner did not provide all of the opinions requested in the Board's July 2011 remand. The August 2012 VA examiner checked a box on the DBQ form under "Medical opinion for secondary service connection" which stated, "The claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service connected condition." The VA examiner then provided a rationale for this negative nexus opinion in which he concluded that the Veteran's current right knee condition (which he diagnosed as minor arthritic changes consistent with aging) was "more likely than not secondary to obesity and aging." He did not provide any opinions concerning the contended causal relationship between the Veteran's active service and her current right knee condition on a direct service connection basis or on the basis of aggravation of the Veteran's right knee condition by her service-connected residuals of a right foot injury as both of these sections of the DBQ form were left blank. Similarly, with respect to the Veteran's left knee condition, the August 2012 VA examiner only checked a box on the DBQ form under "Medical opinion for secondary service connection" which stated, "The claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service connected condition." The VA examiner then provided a rationale for this negative nexus opinion in which he concluded that the Veteran's current left knee condition (which he diagnosed as changes consistent with age-related degenerative joint disease) was "more likely than not secondary to obesity and aging." He did not provide any opinions concerning the contended causal relationship between the Veteran's active service and her current left knee condition on a direct service connection basis or on the basis of aggravation of the Veteran's left knee condition by her service-connected residuals of a right foot injury as these sections of the DBQ form were left blank. He instead limited his opinion to addressing the contended causal relationship between the Veteran's right knee condition and her left knee condition by noting that the Veteran "claims right knee condition led to left knee condition." See also 38 C.F.R. §§ 3.303, 3.304, 3.310 (2012). A review of the claims file shows that there is insufficient medical evidence to adjudicate the issue of whether the Veteran's currently diagnosed right and left knee and lower leg conditions are related directly to active service or were aggravated by her service-connected residuals of a right foot injury. Id. Because the August 2012 VA examiner did not answer all of the questions asked in the Board's July 2011 remand, the Board finds that, on remand, the, the August 2012 VA knee and lower leg conditions DBQ must be returned to this examiner for an addendum in which he provides opinions as to whether the Veteran's right knee and lower leg condition and her left knee and lower leg condition are related to active service on a direct service connection basis and whether these disabilities were aggravated by her service-connected residuals of a right foot injury. In Stegall v. West, 11 Vet. App. 268 (1998), the Court held that a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. It was error for the RO/AMC to re-certify this appeal to the Board in September 2012 without complying with the July 2011 remand instructions. Given this error, another remand is required. Accordingly, the case is REMANDED for the following action: 1. Contact the VA Medical Center in Montgomery, Alabama, and request that the VA examiner who conducted the Veteran's August 30, 2012, VA knee and lower leg conditions DBQ provide an addendum to this examination report. The claims file and a copy of this remand must be provided to this examiner for review. In his addendum, this VA examiner should answer the following questions: (a) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any identified right knee/leg disorder had its onset during the Veteran's active service, any period of ACDUTRA, or if she sustained an injury during INACDUTRA causing her right knee/leg disorder, or is otherwise etiologically related to a period of active duty or ACDUTRA/ INACDUTRA. (b) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any identified left knee/leg disorder had its onset during the Veteran's active service, any period of ACDUTRA, or if she sustained an injury during INACDUTRA causing her left knee/leg disorder, or is otherwise etiologically related to a period of active duty or ACDUTRA/ INACDUTRA. (c) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's current right knee/leg disorder was caused or aggravated by her service-connected residuals of a right foot injury. The examiner is advised that the term "aggravated" refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. If aggravation is present, the examiner should indicate, to the extent possible, the disability attributable to aggravation. In so doing, the approximate level of severity of the right knee/leg disorder (i.e., a baseline) before the onset of the aggravation should be identified. (d) Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's current left knee/leg disorder was caused or aggravated by her service-connected residuals of a right foot injury and/or right knee and leg disorder . The examiner is advised again that the term "aggravated" refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. If aggravation is present, the examiner should indicate, to the extent possible, the disability attributable to aggravation. In so doing, the approximate level of severity of the left knee/leg disorder (i.e., a baseline) before the onset of the aggravation should be identified. A complete rationale must be provided for any opinions expressed. If any opinion cannot be expressed without resorting to mere speculation, then the examiner should explain why this is so and provide a supporting rationale. 2. If, and only if, the VA examiner who conducted the Veteran's August 30, 2012, VA knee and lower leg conditions DBQ is not available, then schedule the Veteran for another VA examination to determine the nature and etiology of her right and left knee and lower leg conditions. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The Veteran should be asked to provide a complete medical history, if possible. Based on a review of the claims file, and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner is asked to opine: a) Whether the Veteran at the time her claims were received (in June 2009) or at any time since then has met the criteria for diagnoses of a right knee and/or left knee leg disorder. In doing so, the examiner should address the fact that various VA and private treatment records reference diagnoses of osteoarthritis of the knees. b) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any identified right knee/leg disorder had its onset during the Veteran's active service, any period of ACDUTRA, or if she sustained an injury during INACDUTRA causing her right knee/leg disorder, or otherwise is related etiologically to a period of active duty or ACDUTRA/ INACDUTRA. In this regard, the examiner should state whether any current right knee/leg disability is related to the Veteran's reported injury during a period of ACDUTRA in August 1994. c) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any identified left knee/leg disorder had its onset during the Veteran's active service, any period of ACDUTRA, or if she sustained an injury during INACDUTRA causing her left knee/leg disorder, or otherwise is related etiologically to a period of active duty or ACDUTRA/ INACDUTRA. d) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's current right knee/leg disorder was caused or aggravated by her service-connected residuals of a right foot injury. The examiner is advised that the term "aggravated" in this context refers to a permanent worsening of the underlying condition in contrast to temporary or intermittent flare-ups of symptomatology which resolve with a return to the baseline level of disability. If aggravation is present, the examiner should indicate, to the extent possible, the disability attributable to aggravation. In so doing, the approximate level of severity of the right knee/leg disorder (i.e., a baseline) before the onset of the aggravation should be identified. e) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's current left knee/leg disorder was caused or aggravated by her service-connected residuals of a right foot injury and/or right knee and leg disorder. The examiner is advised that the term "aggravated" in this context refers to a permanent worsening of the underlying condition in contrast to temporary or intermittent flare-ups of symptomatology which resolve with a return to the baseline level of disability. If aggravation is present, the examiner should indicate, to the extent possible, the disability attributable to aggravation. In so doing, the approximate level of severity of the left knee/leg disorder (i.e., a baseline) before the onset of the aggravation should be identified. A complete rationale must be provided for any opinions expressed. If any opinion cannot be expressed without resorting to mere speculation, then the examiner should explain why this is so and provide a supporting rationale. 3. The Veteran should be given adequate notice of the requested examination, if scheduled, which includes advising her of the consequences of her failure to report to the examination. If she fails to report to the examination, then this fact should be noted in the claims file and a copy of the scheduling of examination notification or refusal to report notice, whichever is applicable, should be obtained by the RO and associated with the claims file. 4. Review all evidence received since the last prior adjudication and readjudicate the Veteran's claims. If the determination remains unfavorable to the Veteran, then the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the Veteran and her service representative. Thereafter, the case should be returned to the Board for further appellate 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). ______________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs