Citation Nr: 1326735 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 07-22 143 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUES 1. Entitlement to a rating in excess of 20 percent for hammer toe and painful callus deformities of the right foot. 2. Entitlement to an initial rating in excess of 20 percent for lumbar strain with degenerative disc disease. 3. Entitlement to total disability rating based on individual unemployability (TDIU) due to service-connected lumbar spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Donna D. Ebaugh, Counsel INTRODUCTION The Veteran served on active duty from March 1972 to May 1976. This appeal to the Board of Veterans' Appeals (Board) arose from an August 2006 rating decision in which the RO in Seattle, Washington, inter alia, denied the Veteran's claim for a rating in excess of 20 percent for hammer toe and painful callus deformities of the right foot, but granted service connection and assigned an initial 20 percent rating for lumbar strain with degenerative disease, effective December 22, 2005. In January 2007, the Veteran filed a notice of disagreement (NOD) with both ratings. A statement of the case (SOC) was issued in May 2007, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in June 2007. During the pendency of the appeal, the Veteran's claims file was transferred to the jurisdiction of the RO in Columbia, South Carolina, which has certified the appeal to the Board. Because this appeal involves disagreement with the initial rating assigned following the award of service connection for lumbar strain with degenerative disc disease, the Board has characterized that matter in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). In November 2010 and November 2012, the Board remanded the claims for higher ratings to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After accomplishing further action, the AMC continued to deny the claims (as reflected in a March 2012, March 2013, April 2013 supplemental SOCs (SSOCs)) and returned these matters to the Board for further appellate consideration. (Notably, the April 1, 2013 SSOC is duplicative of the March 29, 2013 SSOC). As regards characterization of the appeal, although the Board referred to the RO the matter of the Veteran's entitlement to a TDIU in the November 2012 remand, the Board has now characterized the appeal as encompassing the matter of the Veteran's entitlement to a TDIU due to the service-connected lumbar spine disability, consistent with Rice v. Shinseki , 23 Vet. App. 447 (2009). Also, as noted in prior remands, during the pendency of the appeal, in an October 2007 rating decision, the RO granted service connection and assigned separate 10 percent ratings, each, for peripheral neuropathy of the right and left lower extremities, as associated with lumbar spine disability, effective December 22, 2005. The Veteran did not express disagreement with either rating. In March 2013, the RO increased each rating to 20 percent, also effective December 22, 2005. The Veteran still had not expressed disagreement with either assigned rating (although the Board observes that the time period for doing so has not yet expired). At present, however, the appeal is limited to those matters set forth on the title page. The Board's decision on the claims for higher ratings for right foot and lumbar spine disabilities is set forth below. The matter of the Veteran's entitlement to a TDIU due to the service-connected lumbar spine disability is addressed in the remand following the order; this matter is being remanded RO, via the AMC. VA will notify the appellant when further action, on his part, is required. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim herein decided have been accomplished. 2. Pertinent to the December 2005 claim for increase, the primary symptoms associated with the Veteran's hammer toe and painful callus deformities of the right foot have consisted of pain and weakness as well as an inability to move two of his toes; collectively, these symptoms suggest no more than overall moderately severe disability. 3. Since the December 2005 effective date of the award of service connection, the Veteran's lumbar strain with degenerative disc disease has been characterized by limited motion, with pain, and other complaints of pain, but there has been no objective evidence of ankylosis of the entire thoracolumbar spine or of forward flexion of 30 degrees or less due to pain, weakness, excess fatigability, or incoordination, to include with repeated use. The Veteran claimed incapacitation during flare-ups; however, the record does not show any physician prescribed bed rest. 4. At no point pertinent to this appeal has either disability under consideration been shown to be so exceptional or unusual as to render inadequate the schedular criteria for rating the disability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for hammer toe and painful callus deformities of the right foot are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5282, 5284 (2012). 2. The criteria for an initial rating in excess of 20 percent for a lumbar strain with degenerative disc disease are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, General Rating Formula for Diseases and Injuries of the Spine, and Formula for Rating Intervertebral Disc Syndrome on the Basis of Incapacitating Episodes (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353- 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In connection with what was then a claim for service connection for lumbar spine disability, a March 2006 provided general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. After the award of service connection for lumbar strain with degenerative disc disease, and the Veteran's disagreement with the initial rating assigned, a June 2008 letter provided the appellant with information pertaining to what information and evidence was needed to substantiate a claim for a higher rating for a lumbar strain with degenerative disc disease, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. After issuance of the June 2008 notice letter, the July 2008 supplemental statement of the case reflects readjudication of the matter of the higher rating for the lumbar strain with degenerative disc disease. Hence, the Veteran is not shown to be prejudiced by the timing of this latter notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). With respect to the claim for an increased rating for hammer toes and callus deformities of the right foot, a January 2006 letter addressed what information and evidence was needed to substantiate a claim for a higher rating as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. Additionally, a March 2006 letter provided general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. These notices were provided prior to the initial adjudication of the claim for increase. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided. Pertinent medical evidence associated with the claims file consists of the Veteran's service treatment records, VA outpatient treatment records, private treatment records, the reports of January 2006 (spine and right foot), October 2007 (right foot), December 2010 (spine and right foot), and February 2013 (spine and right foot) VA examinations. In compliance with the November 2012 Remand, additional private treatment records were received and associated with the file. Also of record and considered in connection with the appeal are various written statements provided by the Veteran and his representative on his behalf. No further RO action on any claim, prior to appellate consideration, is warranted. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate these claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with either claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters herein decided, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has 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). However, where the question for consideration is entitlement to a higher initial rating since the award grant of service connection, evaluation of the medical evidence since the grant of service connection to consider the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson, 12 Vet. App. at 126. Similarly, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007 At the outset, the Board notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2011); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). A. Right Foot Historically, the RO granted service connection for hammer toes and painful callus deformities of the right foot and assigned a 10 percent initial rating, effective August 29, 1996 under Diagnostic Codes 5282 (for hammertoes)-and 5284 (for residuals of foot injury). Subsequently, the Veteran was assigned a temporary total rating from February 7, 2002 to March 31, 2002, and a 20 percent disability rating from April 1, 2002. He filed the instant claim for increased rating in December 2005, and appeals an August 2006 rating decision continuing the 20 percent disability rating. The maximum rating assignable under Diagnostic Code 5282 is 10 percent. Under Diagnostic Code 5284, moderate foot disability warrants a 10 percent rating. A 20 percent rating is assigned for moderately severe foot disability, and a 30 percent rating is assigned for severe foot disability. A 40 percent rating requires actual loss of use of the foot. 38 C.F.R. § 4.71a, Diagnostic Code 5284. Words such as "moderate" and "severe" are not defined in VA's Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." See 38 C.F.R. § 4.6. Considering the pertinent evidence of record in light of the above, the Board finds that a rating in excess of 20 percent is not warranted for the right foot disability at any point pertinent to current claim on appeal. A December 2004 X-ray report notes that on the right foot, "[t]here is a questionable previous surgery to the right fifth proximal phalanx distally. No other osseous abnormalities are seen." A November 2005 private treatment record by North East Orthopedic Surgeons notes a recommendation for custom-molded arch supports. In a December 2005 statement, the Veteran characterized the severity of his foot pain as 8 or 9 out of 10 when it affects him, but not all the time. He also reported that he feels like his foot is broken, and tries to put pressure on it but cannot walk on it. He reported that he uses a cane sometimes. In A December 2005 private treatment record, Dr. W. noted excess pronation. In January 2006, a VA examiner noted the Veteran's report of foot pain. The examiner also noted that the Veteran had a gait that showed limping. The Veteran had no right ankle tenderness. His ankle motions were mildly limited in all directions. Pain was noted in active and passive inversion motion, which were equally limited to mild degree with pain. The examiner noted that on the right foot, the second and third toe had no movement due to fusion. The toes also had scars on the dorsal aspect of the toes. There was moderate pes planus on standing which was decreased to a mild degree pes planus with weight off, on sitting. There was a thick callus on the right big toe on the medial aspect as well as dry scales and mild callistes on the plantar aspect. The Veteran's wife submitted a statement date in January 2006 indicating her observations of the Veteran's complaints of pain in his feet. A private treatment record dated in May 2006 indicates that the Veteran stepped on a stone and rolled his ankle. The private physician noted that the entire dorsum of the foot and dorsolateral aspect of the foot was swollen and there was ecchymosis along the medial heel counter accompanied by swelling in both the medial and lateral mallcoli. There was tenderness of the lateral ligamentous complex and tenderness at the distal tip of the medial mallcolus. There was no tenderness across the mid or forefoot. The distal neurovascular examination was intact. The impression was a medial mallcolar avulsion fracture with severe ankle sprain. A July 2006 private treatment record notes the Veteran's report that he was doing well and only complained of minor swelling in the ankle, slight soreness at times and ability to tolerate most activities. In a January 2007 statement, the Veteran reported his belief that "due to the right foot being in such bad shape as a whole, including arthritis and nerve damage, that the muscles and tendons don't have the strength or control they once did." In October 2007, the Veteran underwent another VA examination, in part, for the right foot. Regarding the right foot, the examiner noted inward deviation of the foot 10 degrees. The examiner also noted that the Veteran had valgus to 10 degrees that was correctable by manipulation. Notably, the examiner did not distinguish which foot had valgus that was correctable by manipulation. The October 2007 VA examiner diagnosed a foot injury without additional subjective functional loss or impact on activities of daily living. In December 2010, the Veteran underwent another VA examination. At that time, he reported pain, heat, redness, stiffness, fatigability and lack of endurance, all while standing, walking and at rest. The location of the pain was the forefoot. He also reported flare-ups of foot joint disease that occurred weekly or more often. He reported that the flare-ups lasted less than one day. The effect on functional impairment as a result of flare-ups was "limited severely with walking". The Veteran also reported that he was able to stand for seven to ten minutes and able to walk one block. The examiner also noted that the Veteran used a cane for his bilateral foot disabilities as well as other disabilities. The examiner noted that the efficacy of corrective shoes, shoe inserts, or braces was fair. On physical examination, the December 2010 VA examiner noted that there was no evidence of swelling, instability, or weakness. The examiner noted that there was evidence of painful motion, tenderness, and abnormal weight bearing. The examiner noted objective evidence of painful motion in the forefoot as well as tenderness that was most significant between the first and second metatarsals. The examiner also noted tenderness "to 2nd to 5th toes and between 2nd to 5th metarsals." The examiner noted that there were surgically corrected hammertoes 2nd to 5th digits. The examiner also noted that there was no objective findings of pes cavus and no evidence of malunion or nonunion of the tarsal or metatarsal bones. The examiner also noted that there was no midfoot or forefoot malalignment. The examiner noted that there was moderate pronation. The Veteran's arch was present on non-weight bearing as well as weight bearing. There was pain on manipulation. There was no varus/valgus angulation of the os calcis in relationship to the long axis of the tibia and fibula. The examiner noted right heel valgus to 0 degrees that was correctible by manipulation. The examiner diagnosed mild pes planus and noted that the arch was present. The examiner noted that there was no muscle atrophy of the foot. The examiner listed another "significant physical finding" of "no residual callus." The examiner also noted no objective findings of pes cavus. The examiner diagnosed hammertoe and painful callus deformities of the right foot status post surgical correction, metatarsalgia, no objective evidence of pes cavus and mild pes planus. The examiner noted that the diagnoses had the following effects on daily activities; no effect on feeding or toileting, mild effect on bathing, dressing, grooming and driving, moderate effect on chores, shopping, recreation, travel, and prevents exercise and sports. The Veteran reported that he was no longer working and that he had retired in 2008 due to his back problems. The Veteran also submitted a written statement in December 2010 indicating that he has a loss of mobility due, in part, to his service-connected foot disabilities. He also reported that his feet ache and that ongoing treatment for a foot fungus was not effective. In January 2011, the Veteran's wife submitted a statement indicating her observations that the Veteran is unsteady on his feet and does not walk well anymore. She reported that they take daily walks and that after a very short distance, the Veteran is hurting and they have to turn around. A September 2012 VA outpatient treatment record noted the Veteran's report that his foot orthotics notably helped with pain. The Veteran underwent another VA examination in February 2013. The examiner noted that the Veteran did not have Morton's neuroma or metatarsalgia. The examiner noted that the Veteran did have hammertoes on the right second and third toes. The examiner noted that there was no hallux valgus, hallux rigidus, or claw foot (pes cavus). The examiner noted that there was no malunion or nonunion of the tarsal or metatarsal bones. There was no evidence of bilateral weak foot. The examiner noted that although there were scars related to treatment of a foot condition, none of the scars were painful or unstable and the total area of all related scars was not greater than 39 square centimeters (or six square inches). The examiner noted that the Veteran used a cane constantly. The February 2013 VA examiner was asked if there was functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis and answered "no". Imaging studies of the foot were conducted and the February 2013 VA examiner noted that the studies revealed degenerative or traumatic arthritis in both feet and documented in multiple joints of the same foot, bilaterally. The examiner also noted that studies showed there was mild pes planus deformity of the right foot. Distal Achilles enthesopathic change on the right foot. The right mid foot and forefoot had degenerative change and flattening of the second metatarsal head suggested possible avascular necrosis in the region. The February 2013 VA examiner noted that the Veteran's foot condition impacted his ability to work in that he could not stand or walk for long distances due to pain. The examiner's final remark noted that the Veteran had a moderate right foot disability. The above-cited evidence reflects symptoms of pain and lack of motion in two of the toes, as well as an assessment of a "moderate" disability. While these symptoms are significant, the Board finds they do not rise to the level of severe impairment, the level of disability required for the next higher 30 percent rating. The right foot disability has been treatable with shoe inserts, medications, and a cane. Thus, while the disability of the right foot causes limitations on walking and standing, he still retains significant use of the right foot. A rating in excess of 20 percent is warranted for a severe foot injury under Diagnostic Code 5284. However, the Board finds that the next-higher 30 percent rating is not warranted, as the Veteran has been diagnosed with a moderate foot disability and his symptoms have been consistent throughout the entire period under consideration, The Board also finds that the clinical evidence of record does not show that Veteran's right foot disability has been is manifested by symptomatology that equates to severe right foot disability even when considering 38 C.F.R. §§ 4.40, 4.45 and the Court's holding in DeLuca, supra. The Board has considered sections 4.40 and 4.45 and DeLuca, supra, as the evidence shows the Veteran experiences pain while demonstrating movement in his right foot; however, the lay and medical evidence of record does not reflect that his pain has been so disabling to result in a severe foot disability warranting the next higher 30 percent rating under DC 5284. No other potentially applicable diagnostic code provides a basis for a rating greater than, or in addition to, the assigned 20 percent rating for the right foot. A higher rating is assignable for an acquired flat foot (pes planus) disorder under DC 5276. Specifically, a 30 percent disability rating is warranted for pronounced acquired flatfoot with marked pronation, extreme tenderness of plantar surface, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. Here, at worst, the Veteran was diagnosed with "moderate" pes planus in January 2006. Subsequently, he was found to have "mild" pes planus in December 2010 and February 2013. Thus, a higher rating for "pronounced" flat foot is not warranted at any time during the period on appeal. Additionally, ratings in excess of 20 percent are assignable for claw foot (pes cavus) and severe malunion or nonunion of tarsal or metatarsal bones. However, as the Veteran's right foot disability is not shown to involve either of the above, Diagnostic Code 5278 and 5283, respectively, are not applicable. See 38 C.F.R. § 4.71a. While the record reflects findings of arthritis in the foot, such diagnosis does not provide a basis for a higher, or additional, rating. Under 38 C.F.R. § 4.71a, Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved; or, if limitation of motion is noncompensable, a maximum 20 percent rating is assignable under Diagnostic Code 5003, under certain circumstances, for limited and/or painful motion. While there is no specific diagnostic code for limitation of the foot, as noted, the current rating for the right foot disability is primarily based upon the Veteran's reports of pain and limitation of motion-the same manifestations upon which arthritis is evaluated. Evaluation of the same manifestations under different diagnoses, or "pyramiding", is precluded by 38 C.F.R. § 4.14. The Board has also considered whether a higher, or additional, rating for neurological impairment of the right foot is warranted, given the Veteran's January 2007 statement that he believes he has nerve damage in his right foot. However, the Board finds that a separate rating is not warranted, as the medical evidence of record does not support a finding of any neurological impairment affecting the right foot (or right lower extremity), other than the peripheral neuropathy for which service connection, and separate ratings, are established. In this regard, the Board has considered the December 2006 private nerve study which noted an impression that findings were suggestive of distal sensory neuropathy in the lower extremities. Notably, the Veteran is not competent to diagnose himself with a right foot neurological disorder. Although lay persons are competent to provide opinions on some medical issues (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), as to the specific issue in this case, diagnosis of a right foot neurological disorder falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). There also is no basis for assignment of a separate, compensable rating for the scar on his right foot. The February 2013 VA examiner noted that there is a non-painful scar on the Veteran's right foot, due to surgery for hammer toes. There is no indication or allegation that the right foot scar is adherent and there is no objective evidence of pain with palpation to the scar. As such, and because there is no evidence or allegation of any symptomatology associated with the scar, or indication that the scar results in any limited function, assignment of a separate, compensable rating for the right foot scar is not warranted. See 38 C.F.R. § 4.118, DC 7803 to 7805. The Board notes that, in reaching the above determinations, the Veteran's own assertions, his wife's assertions, and those of his representative, have been considered. The Veteran and his wife are competent to report their observations of his symptoms as they come to them through their senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, as noted, the Board finds that the lay assertions made in support of his claim for higher rating are not entitled to more weight than the objective findings rendered by trained medical professionals in evaluating the Veteran's right foot disability. See 38 C.F.R. § 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions); see also Bostain v. West, 11 Vet. App. 124, 127 (1998); Routen v. Brown, 10 Vet. App. 183, 186 (1997). As indicated above, the persuasive evidence indicates that the Veteran's service-connected right foot disability more nearly approximates the level of disability contemplated by the currently-assigned 20 percent disability rating for the entire period under consideration. B. Lumbar Spine In this case, the RO has assigned an initial 20 percent rating from December 22, 2005, the date of the claim for service connection. The rating for the service-connected lumbar spine disability has been assigned under Diagnostic Code 5242 (for degenerative arthritis of the spine). However, the actual criteria for rating disabilities of the spine are set forth in a General Rating Formula for Diseases and Injuries of the Spine. That formula provides for assignment of a rating of 20 percent for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The next higher 40 percent rating is warranted for disability of the thoracolumbar spine either where forward flexion of the thoracolumbar spine is 30 degrees or less, or where there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted where there is unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted where there is unfavorable ankylosis of the entire spine. These ratings are to be applied for range of motion measurements 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. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Under the rating schedule, forward flexion to 90 degrees, and extension, lateral flexion, and rotation to 30 degrees, each, are considered normal range of motion of the thoracolumbar spine. 38 C.F.R. § 4.71a, General Rating Formula, Note 2, and Plate V. Under Note (1) of the General Rating Formula, VA must consider whether combining ratings for orthopedic and neurological manifestations would result in a higher rating for the Veteran's service-connected degenerative changes of the lumbar spine with stenosis. In the case at hand, the Veteran was diagnosed with a lumbar strain with degenerative disc disease. Thus, the criteria specific to evaluating intervertebral disc syndrome is also pertinent here. Pursuant to 38 C.F.R. § 4.71a, intervertebral disc syndrome is 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 under § 4.25. Under the Formula for Rating Intervertebral Disc Syndrome (IVDS), based on incapacitating episodes, a 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For purposes of evaluation under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician. 38 C.F.R. § 4.71a. Considering the pertinent evidence of record in light of the applicable criteria, the Board finds that a rating in excess of 20 percent for lumbar strain with degenerative disc disease is not warranted at any point pertinent to this appeal. In reaching this conclusion, the Board has considered VA examination reports, private medical evidence, and VA outpatient treatment records, as well as lay statements from the Veteran and his wife. The Veteran underwent three VA examinations of his lumbar spine, in January 2006, December 2010, and February 2013. The January 2006 VA examination report noted the Veteran's report that he had low back pain for the past few years. The Veteran also reported that he was able to work in a clerical position that was not physically demanding. The report also noted a mild loss of lumbar lordosis. Ranges of motion included forward bending to 60 degrees, extension to 15 degrees with pain and guarding, side bending limited to 15 to 20 degrees with pain and guarding, rotational movement was limited to 20 degrees to the left with stiffness, and right-side rotation was normal. Repetitive testing results were not specified but the examiner opined that with repetitive use of his back, the Veteran is likely to develop more pain and that would cause additional functional limitation on a temporary basis. The examiner noted that the additional range of motion limitation expected to be lost by pain is to a mild to moderate degree. The December 2010 examination report notes that the Veteran experienced daily low back pain that radiated to both lower extremities. He was being treated with ibuprofen. He reported that he experienced flare-ups every five to six months that lasted one to two weeks. The flare-ups were caused by prolonged sitting and sudden movements and were alleviated with rest and medication. He reported that the flare-ups were incapacitating but that he was not prescribed bed rest. On examination, the Veteran could flex to 45 degrees, extend from 0-15 degrees, left lateral flex to 20 degrees and right lateral flex to 15 degrees, and rotate to 15 degrees bilaterally. All motion was accompanied by pain. His motion was not additionally limited by repetitive motion. He did not have ankylosis. The effect on his activities of daily living included limited walking, prolonged sitting, and standing. He cannot participate in much with yard work and house work. He is unable to tolerate an exercise program. He also reported that he used a cane. As noted in the introduction above, the Veteran also reported that he stopped working in 2008 due to his low back disability. In a statement dated in December 2010 (and reiterated in May 2011), the Veteran reported that he was unable to take simple walks and was increasingly unstable in his gait. He also reported that twice in the past year, his back went out and that he had to lay flat in bed for more than a week each time. He also reported that if he sits for too long without moving, some areas go numb and he stiffens to the point where he feels great difficulty with any movement at all. A private MRI report dated in December 2010 noted an impression that L5-S1 facets were severely degenerative and may be ankylosed. A private treatment record from Dr. Y. dated in April 2011 note that the Veteran had T-spine and L-spine fractures following a fall from a 20 foot ladder. A May 2011 follow-up record noted X-ray findings of prominent degenerative changes in the thoracic and lumbar spines. A May 2011 VA outpatient treatment record documents the Veteran's reports of a fall off of a ladder in March 2011 and that he broke five pieces of vertebrae as a result of the fall. In a December 2011 statement to VA, the Veteran reported that the severity and duration of his symptoms were "much more severe than in the past." A September 2012 VA outpatient treatment record reflects the Veteran's report of constant aching back pain measured at a 4 out of 10. The February 2013 VA examination report notes the Veteran's report that his low back pain had gotten worse over the past few years. MRI evidence showed worsening of the degenerative disc disease from 2006 to 2010 and again in 2011, following an accident. He reported that he experienced extensive low back pain that radiated to both lower extremities. He reported that he had difficulty walking any significant distance. He reported that he had flare-ups and that sitting for extended periods made the pain much worse. He was being treated with Tramadol and ibuprofen. On examination, the Veteran could flex to 80 degrees with painful motion beginning at 60 degrees, extend to 15 degrees with pain beginning at 5 degrees, laterally flex to 15 degrees bilaterally with pain beginning at 10 degrees bilaterally, and rotate to 15 degrees bilaterally with pain beginning at 10 degrees bilaterally. His motion was not additionally limited by repetitive motion. The examiner noted that the Veteran had functional loss, functional impairment, and/or additional limitation of motion after repetitive use as follows: less movement than normal, incoordination, impaired ability to execute skilled movements smoothly, pain on movement, disturbance of locomotion, interference with sitting, standing, and/or weight-bearing. The examiner also noted slight tenderness of the lumbar spine but no guarding or muscle spasm. He had normal muscle strength on testing. He also had normal reflexes. The examiner noted that the Veteran used a cane regularly. As discussed above, the examiner noted that MRI showed severe degenerative disc disease of the lumbar spine. The examiner noted that the effect on work was that the Veteran was unable to sit in the same position or lift any extensive weight. The Board finds that the 20 percent rating is most appropriate for the entire period under consideration because the Veteran's range of flexion during each of the examinations was not limited to 30 degrees. Specifically, on January 2006 VA examination, the Veteran had flexion to 60 degrees. On December 2010 VA examination flexion was noted to be to 45 degrees with pain, and flexion at the February 2013 VA examination was 80 degrees with pain beginning at 60 degrees. Even considering the Veteran's complaints of pain, his demonstrated range of flexion was not limited to 30 degrees or less at any time during the period under consideration. Significantly, although VA outpatient treatment records and private treatment records have been considered, such records do not indicate flexion limited to 30 degrees or less. The Board acknowledges that the December 2010 private MRI noted that L5-S1 may be ankylosed; however, ankylosis referenced in the rating criteria refers to ankylosis of the entire thoracolumbar spine, not one joint. The Board notes that the range of motion criteria under the General Rating Formula are to be applied with or without symptoms such as pain. Moreover, as regards the factors identified in DeLuca, repetitive motion at the examinations did not reflect addition functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups that limited flexion to 30 degrees or less. Similarly, the VA and private treatment records likewise do not support a finding of additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups that limited flexion to 30 degrees or less. The Board acknowledges the Veteran's statements to the December 2010 VA examiner that flare-ups were incapacitating; however, he acknowledged that he had not been prescribed bed rest by a physician. Additionally, at the February 2013 VA examination, he did not report incapacitating flare-ups but rather that the impact of flare-ups was that "sitting for extended periods makes the pain much worse." Thus, even considering the factors noted in 38 C.F.R. §§ 4,40 and 4.45, and DeLuca, the Board finds that, under a rating in excess of 20 percent is not assignable under the General Rating Formula for the entire period on appeal. The Board also finds that Note(1) to the General Rating Formula also provides no basis for a rating in excess of 20 percent at any point during the period under consideration. As noted, service connection has been established for peripheral neuropathy of each lower extremity (which the RO has, curiously, indicated is associated with the lumbar spine disability), however, the Veteran had not alleged, and there is no medical evidence whatsoever indicating, that he has any other separately ratable neurological manifestations. In fact, VA outpatient treatment records and VA examination reports indicate that he denied any other neurological problems associated the lumbar spine disability. Furthermore, there is no competent, persuasive evidence to support a finding that the Veteran's service-connected lumbar spine disability would warrant a higher rating at any pertinent point if rated on the basis of incapacitating episodes. The medical evidence from this period does not indicate any bed rest prescribed by a physician, let alone for a total period of at least 4 weeks during a 12-month period, as required for a higher, 40 percent, rating. The Board acknowledges that the February 2013 VA examiner did not specifically address IVDS; however, the remaining evidence of record does not support a finding of physician-prescribed bed rest. As noted above, even when the Veteran reported incapacitating flare-ups in December 2010, he acknowledged that he was not prescribed bed rest by a physician. Based on the foregoing, the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes likewise provides no basis for assignment of a higher rating. C. Both Claims The above determinations are based on application of pertinent provisions of VA's rating schedule. Additionally, the Board finds that at no pertinent point has either disability under consideration been shown to be so exceptional or unusual as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321 (cited in the May 2007 SOC). The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1) (2009); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, supra. In this case, the Board finds that schedular criteria are adequate to rate each disability under consideration at all pertinent points. The rating schedule fully contemplates the described symptomatology, and provides for ratings higher than those assigned based on more significant functional impairment. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met for any claim. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Also, in adjudicating each claim for a higher rating, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against assignment of any higher rating for either disability at any pertinent point, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER A rating in excess of 20 percent for hammer toe and painful callus deformities of the right foot is denied. An initial rating in excess of 20 percent for lumbar strain with degenerative disc disease, is denied. REMAND The Board's review of the claims file reveals that further RO action in this appeal is warranted. By way of background, the Board notes that, during his December 2010 VA examination, the Veteran reported that he was no longer able to work in his clerical position with the postal service due to his "low back disability." Then, in a December 2010 written statement describing his back pain, among other symptoms, he reported "[t]here's no way that I could even do the simplest of jobs that required standing or walking, and if I sit for too long without moving, some areas go numb and I stiffen right up to the point where I feel great difficulty with any movement at all, and as I have stated in my claim that I am totally unemployable." The Veteran also supplied letters from private physicians (Dr. S. and Dr. A.) dated in June 2010 and March 2011, which indicated unemployability due to service-connected as well as nonservice connected disabilities. In the November 2012 Remand, the Board referred the TDIU claim to the RO as due to service-connected and non-service connected disabilities. The RO has not yet taken action with respect to the TDIU claim. Subsequently, the February 2013 VA examiner opined that the functional impact of the Veteran's lumbar spine disability on employment was that it would make him "unable to sit in the same position or lift any extensive weight." Taken together, the Veteran's lay statements and the February 2013 examiner's opinion appear to raise a claim for a TDIU due to service-connected lumbar strain with degenerative disc disease as a component of the claim for higher rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). See also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Under these circumstances, after taking additional other action noted below, the RO should adjudicate this matter , in the first instance, to avoid prejudice to the Veteran. See e.g., Bernard v. Brown, Vet. App. 384 (1993). On remand, the RO should arrange for the Veteran to undergo examination to obtain a medical opinion in connection with the claim. The Board observes that he has not undergone a VA examination with respect to a TDIU claim since September 2008. At that time, the examiner found that the Veteran could sustain gainful employment in a seated position. However, given the February 2013 VA examiner's opinion that the Veteran's lumbar spine disability renders him unable to sit in the same position, presumably for any prolonged period, another VA opinion regarding employability should be obtained. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may result in a denial of the claim. See 38 C.F.R. § 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of such examination sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo further an examination, to ensure that all due process requirements are met and that the record is complete, the RO should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. The RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the matter remaining on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). In its letter, the RO should specifically request that the Veteran furnish, or furnish appropriate, current authorization for the RO to obtain, any pertinent, outstanding private records. Thereafter, the RO should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization following the procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties to notify and assist imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the remaining claim. Accordingly, this matter is hereby REMANDED for the following action: 1. Furnish to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim for a TDIU due to lumbar spine disability that is not currently of record. Specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding, pertinent private records. Explain what is needed to support a claim for a TDIU due to lumbar spine disability, Also, clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the Veteran responds, obtain all identified evidence not currently of record, following the procedures set forth in 38 C.F.R. § 3.159 (2012). All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses from each contacted entity are associated with the claims file, arrange for the Veteran to undergo VA examination, by an appropriate physician, for the purpose of obtaining a medical opinion addressing impact of the Veteran's service-connected lumbar spine disability on his ability to work. The Veteran's entire claims file, to include a complete copy of this REMAND and copies of pertinent records in the Veteran's Virtual VA folder (if the examiner does not have access), must be made available to the physician designated to examine the Veteran, and the examination report must include discussion of the Veteran's documented medical history and assertions. The physician should comment upon the functional effects of the lumbar spine disability on the Veteran's ability to perform the physical acts required for employment. Then, the physician should offer an opinion as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's service-connected lumbar spine disability render s him unable to secure or follow a substantially gainful occupation, In rendering the requested opinion, the physician should not consider the Veteran's age or the impact of any nonservice-connected disabilities, but should consider and discuss subjective factors such as her education, experience, and training, as appropriate. In offering the opinion sought, the examiner should consider and discuss all pertinent lay and medical evidence of record, to include the Veteran's assertions. The examiner must provide supporting rationale for the conclusions reached in a printed (typewritten) report. 4. If the Veteran fails to report to the scheduled VA examination, the RO must obtain and associate with the claims file a copy of any notice of the date and time of any such examination sent to him by the pertinent VA medical facility. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested action, and any additional notification and/or development deemed warranted, adjudicate the claim for service connection for a TDIU due to service-connected lumbar spine disability in light of all pertinent evidence and legal authority. 7. If the benefit sought on appeal is denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs