Citation Nr: 1326955 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 07-05 182 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for hepatitis C (HCV). 2. Entitlement to a rating in excess of 10 percent prior to April 18, 2013, and to a rating in excess of 30 percent since April 18, 2013, for right foot disability. 3. Entitlement to a rating in excess of 10 percent prior to April 18, 2013, and to a rating in excess of 30 percent since April 18, 2013, for left foot disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Emily L. Tamlyn, Counsel INTRODUCTION The Veteran had active duty service from February 1983 to July 1983 and prior service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2006 and September 2007 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO), which denied the above issues. The Veteran timely appealed that decision. The Veteran and his spouse testified at a Board hearing before the undersigned in October 2012; a transcript of that hearing is associated with the claims file. This claim was remanded in March 2010 and March 2013. The claim for service connection for HCV is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to April 18, 2013, the right foot disability was manifested by moderate malunion or nonunion of the metatarsal bones. 2. Since April 18, 2013, the right foot disability is manifested by severe malunion or nonunion of the metatarsal bones. 3. Prior to April 18, 2013, the left foot disability was manifested by moderate malunion or nonunion of the metatarsal bones. 4. Since April 18, 2013, the left foot has severe malunion or nonunion of the metatarsal bones. CONCLUSIONS OF LAW 1. Prior to April 18, 2013, the criteria for the assignment in excess of 10 percent for a right foot disability have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5279, 5283, 5284 (2012). 2. Since April 18, 2013, the criteria for the assignment in excess of 30 percent for a left foot disability have not been met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, DCs 5279, 5283, 5284. 3. Prior to April 18, 2013, the criteria for the assignment in excess of 10 percent for a left foot disability have not been met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, DCs 5279, 5283, 5284. 4. Since April 18, 2013, the criteria for the assignment in excess of 30 percent for a right foot disability have not been met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, DCs 5279, 5283, 5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Here, the Veteran was sent a letter in February 2006 that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. In November 2006, a letter also explained what type of information and evidence was needed to establish a disability rating and effective date. The Board acknowledges that, in the present case, complete notice regarding the disability rating and effective date was not issued prior to the adverse determination on appeal. However, fully compliant notice was later issued in the November 2006 communication, and the claim was thereafter readjudicated several times. Any timing deficiency has here been appropriately cured. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). No further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's reports of VA and private treatment and examination pertinent to the increased rating claims being adjudicated. Moreover, the statements in support of the claim are of record, including testimony provided at an October 2012 Board hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). The Court has held that the provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). Here, the transcript of the October 2012 Board hearing shows the Veteran gave information regarding his increased rating claims and responded to questions aimed at determining whether further information was needed to substantiate the claims. The Veteran has not raised complaints regarding the conduct of the hearing. The Board finds the duties to notify and to assist have been met. Finally, the Board remanded these claims to allow the Veteran a Board hearing and for an updated VA examination. These objectives have been accomplished and the Board finds that there has been substantial compliance with the remand. See Stegall v. West, 11 Vet. App. 268 (1998). Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155 (West 2002). Separate DCs identify the various disabilities. Id. It is necessary to evaluate the disability from the point of view of the veteran working or seeking work and to resolve any reasonable doubt regarding the extent of the disability in the veteran's favor. 38 C.F.R. § 4.2, 4.3 (2012). If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2012). In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. §§ 4.1 and 4.2 (2012). Also, the entire rating period is considered for the possibility of staged ratings. Consideration will be given to the possibility of separate ratings for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). Here, the Board has considered whether the Veteran is entitled to further staged ratings under Hart, 21 Vet. App. 505. However, as will be discussed, no staged ratings are warranted by the evidence in the file. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examinations on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45 (2012). The Court has held that the RO must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court also held in DeLuca that VA's review of a service-connected musculoskeletal disability must include an assessment of the functional impairment caused by that disability. See 38 C.F.R. §§ 4.40, 4.45. However, the Court has held that where a diagnostic code is not predicated on a limited range of motion alone, such as with the DCs discussed below, the provisions of 38 C.F.R. §§ 4.40 and 4.45 do not apply. Johnson v. Brown, 9 Vet. App. 7, 11 (1996). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Actually painful, unstable, or malaligned joints, due to healed injury, are as entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and non-weight bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59 (2012); see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 is not limited to arthritis). Finally, the Court has held that within a particular diagnostic code, a claimant is not entitled to more than one disability rating for a single disability unless the regulation expressly provides otherwise because to find otherwise would permit an absurd result of compensating twice for the same condition. See Cullen v. Shinseki, 24 Vet. App. 74, 84 (2010); see also Yonek v. Shinseki, ___ F.3d ___, No. 2012-7120, 2013 WL 3368972 (Fed. Cir. July 8, 2013) (holding that only a single disability rating for each arm that suffers from limited motion at the shoulder joint was warranted). The history of the claim shows that prior to filing an increased rating claim in December 2005, the Veteran was receiving a 10 percent rating for each foot for malunion of a tarsal navicular stress fracture under DC 5283. In May 2006, the RO continued these ratings but re-characterized both the right and left foot disabilities as mild capsulitis of the talonavicular and naviculocuneiform articulations. Effective May 2013, the RO increased both ratings to 30 percent under DC 5283. Each time period will be discussed. DC 5283 covers malunion or nonunion of the tarsal or metatarsal bones. A 10 percent rating is assigned when the disability is moderate. A moderately severe disability warrants a 20 percent rating. A severe foot injury warrants a 30 percent rating. A note to DC 5283 provides that a 40 percent disability evaluation will be assigned for actual loss of use of the foot. 38 C.F.R. § 4.71a, DC 5283 (2012). Similarly, under DC 5284, a 10 percent rating is assigned for moderate foot injury. A moderately severe foot injury warrants a 20 percent rating. A severe foot injury warrants a 30 percent rating. Again, a note provides that a 40 percent disability evaluation will be assigned for actual loss of use of the foot. 38 C.F.R. § 4.71a, DC 5284 (2012). Finally, under DC 5279, metatarsalgia (regardless of whether it is anterior as with Morton's disease, unilateral or bilateral) warrants only a 10 percent rating. 38 C.F.R. § 4.71a, DC 5279 (2012). The words slight, moderate, and severe as used in the various DCs are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6 (2012). The use of terminology such as severe by VA examiners and others is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. To give the Veteran every consideration in connection with the matters on appeal, the Board must consider all potentially applicable DCs under 38 C.F.R. § 4.71a in rating the foot disabilities. See, e.g., Butts v. Brown, 5 Vet. App. 532, 538 (1993) (the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case"), and Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992) (one DC may be more appropriate than another based on such factors as the relevant medical history, current diagnosis, and demonstrated symptomatology). Other DC pertaining to disabilities of the feet include: DC 5276 for flatfoot, acquired; DC 5277 for weak foot, bilateral; or DC 5278 for claw foot (pes cavus), acquired. As explained, these disabilities are not at issue. In February 2006, the Veteran stated his foot problem caused severe pain and discomfort and he could not stand or walk on his toes. He had difficulty walking, carrying weight, being on his feet for more than 30 minutes, bending to reach something, or putting pressure on feet, toes or ankles. He had pain in his ankle area and the arches felt "like it is torn or tearing," both of his feet went to sleep, his bones crack when he was walking and he was unable to run at all. At the October 2012 Board hearing, the Veteran stated his feet usually started to hurt about one hour into work as a heating and cooling mechanic. (Transcript, p 7.) He carried less weight and felt his balance was not as good. Id. He tried to accommodate himself by carrying less, putting his tool bag on wheels and using a dolly. (Transcript, pp 14, 16.) The Veteran is competent to state that he is suffering from pain or other symptoms of which he personally experiences and has first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). Regarding credibility, when deciding claims for increased disability ratings, the Board must particularly consider the credibility of a claimant's statements reporting symptoms. See Tatum v. Shinseki, 23 Vet. App. 152, 155 (2009) (noting that the Board's failure to discuss a veteran's report of symptoms combined with a failure to address her credibility rendered its statement of reasons or bases inadequate). Here, the Board finds the Veteran has been credible in reporting pain in his feet generally. Prior to April 18, 2013 Several records from TDCJ (the medical facility where the Veteran was treated while he was incarcerated for a large part of this time period) show the Veteran complained of foot pain over time, but he also requested not to be restricted at his job due to walking (see November 2004 TDCJ note). In August 2005, a TDCJ record shows the plan was to get heel cups because he complained of heel pain but liked his "hoe squad job." In December 2005, he complained of pain in heels, pain with walking and that shoe inserts were not helping. Past attempts to resolve the issue were various orthotics and limited walking. He was found to have podalgia; it was noted there were no problems with balance or gait. In May and June 2006, a TDCJ record shows he requested that walking restrictions be reinstated; he had a normal gait and a grossly normal anatomy. A July 2007 TDCJ record showed he requested work restrictions removed for back and lifting; however, the no walking over 999 yards was still in place. TDCJ X-rays from June 2006 for the right foot only showed small calcaneal bone spurs but that the bones and joints of foot were otherwise unremarkable. An August 2006 TDCJ lower extremity X-ray was also essentially normal. A November 2006 TDCJ record showed at a hepatitis C follow up, the Veteran stated he felt great and did not have any problems; he liked to go outside and lift weights. Daily aerobic exercise was recommended. Regarding orthotics and continual foot problems, a November 2006, a TDCJ record showed the Veteran requested new medical boots because he had a distant history of stress fracture. There was nothing found on observation and assessment; his request was denied. In January 2007, he again requested new boots and in August 2007, orthotic boots were fitted and accepted by the Veteran. In September 2009, a TDCJ record again shows footwear with inserts were issued. But in May 2011, a VA record stated that custom orthotics were not needed as shoe inserts worked. Another record showed the Veteran continued to have aching feet bilaterally; he was a maintenance supervisor and used stairs all the time. The Veteran received two VA examinations during this time period. In February 2006, the examiner noted symptoms of foot pain over the past five years. Medication did not improve the condition, and although VA orthotic treatment in 1997 was helpful, he did not have access to it due to incarceration and his treatment for foot complaints had generally been limited or unfocused. He did not require or have assistive devices. He was shackled originally, but the shackles were removed for the purposes of the examination. An examination of the feet showed them to be symmetrical with normal arches. There was no painful motion, edema, weakness, or instability with either foot. He did have mild tenderness to palpation about the talonavicular and naviculocueiform articulations of both feet bilaterally without other relevant symptoms. The feet were most tender around the heel and soles. The examiner stated that passive dorsiflexion of the feet was "perpendicular with the knees extended;" explained as "mild bilateral symmetric equinus." Other than that, there was not a range of motion impairment for either foot. The assessment was mild capsulitis, bilateral talonavicular and naviculoncuneiform articulations as well as mild chronic soreness in and about the navicular bones that might be characterized as chronic low grade fracture reparative process or comparable to mild osteoarthritis in these regions (related to the original service-connected injury). Any ranges of motion were not additionally limited by pain, fatigue, weakness, or lack of endurance following repetitive use. Plantar fasciitis and heel spur syndrome were deemed to be unrelated to the service-connected disabilities; it was recommended he use structural athletic shoes and orthotics which were beneficial in the past. The Veteran received another VA examination in June 2011. The claims file was reviewed. The Veteran stated he was currently working in heating and air-conditioning. His foot complaints included: intermittent swelling, pain, redness, painful clicking and popping, and pain with heel and toe walking. The examiner stated feelings of numbness and tingling was more likely a compression neuropathy and not due to the SC disability; also not related to the service-connected disabilities was hallux valgus of both feet. He used to use orthotics but was no longer provided these. His activities of daily living were not limited but could be difficult to accomplish; his job was affected in that he had difficulty climbing ladders, walking on rooftops, was unable to jump down from short heights, was limited in walking 50 to 60 yards, limited to standing 15 to 20 minutes, and had flare ups three to four times per week causing him to seek self-imposed bed rest (usually after a heavy work day). Physical examination showed his gait was normal and there was no: pes planus, callus formation, abnormal wear to the shoes, heat, redness, swelling, vascular changes, hammertoes, high arch, claw foot or other deformities. He did have tenderness to palpation with torsion of both feet, right greater than left, and on the dorsal side on both feet at the tarsals. He also had had good pulses and capillary refill. The assessment was healed bilateral foot stress fractures with tarsalnavicular capsulitis and bilateral foot plantar fasciitis. A March 2012 VA podiatry record again showed the Veteran reported foot pain. The podiatrist also noted a right toe fracture (duration is unknown), but there was no pain associated with it. The area was non-symptomatic. Instead he only reported pain in the feet generally for years. The podiatrist also assessed suspected lipomas, dorsal lateral foot pain and low-grade metatarsalgia bilaterally. The podiatrist noted hammertoes 2 through 5 bilaterally. Metatarsals were clinically plantar flexed, 2 through 5, with at times metatarsal joint pain. Some joint hypertrophy was noted at proximal interphalangeal joint. As stated, the latest X-ray report on February 28, 2012, indicated a minimally-displaced intraarticular fracture of the head of the second proximal phalanx of the right foot with no other fractures or dislocations. The soft tissues were unremarkable. Clinical evidence of the suspected fatty tumors at lateral dorsal aspect of both feet were noted to have superficial veins that transversed the area with the Veteran developing phlebitic/neuritic pain as a result of his boots/vamp being narrow at this area. The Veteran stated that at the end of the day his feet would swell up. He was advised to use lace-up style boots to avoid pressure at this area. The joints of the feet were not painful upon range of motion and upon palpation. At the time, there was no evidence of joint swelling, redness, or increased temperature. He denied recent trauma to his feet. He recently had undergone hand surgery, and was in recovery. No sores or lesions were identified. He had no other foot complaints, except for metatarsal joint pain and dorsal lateral pain of both feet. Given the level of involvement and nature of the bilateral foot symptomatology, the Board finds that DC 5283 regarding the tarsals or metatarsal bones most accurately addresses the bilateral foot disabilities. This code is substantially similar to DC 5284 anyway, and DC 5279 regarding metatarsalgia would not provide an increase as the Veteran is already receiving 10 percent for this time period. Given the competent and credible medical and lay evidence of record, the Board finds that the symptomatology more nearly approximates the 10 percent ratings characterizing the moderate symptoms. The February 2006 VA examiner described the symptoms as "mild" which was supported by the findings at that examination. The findings are not inconsistent with the Veteran's complaints of pain during this time or the other ongoing treatment records from TDCJ. The June 2011 VA examination produced similar findings, again noting tenderness to palpation. The 2012 podiatry record noted metatarsalgia to be "low grade." Evidence of record is also absent any findings of pronounced, bilateral flat foot, weak foot or bilateral claw foot (pes cavus) for the assignment of any higher rating under alternative rating criteria. 38 C.F.R. § 4.71a, DC 5276-5278. Similarly, hallux valgus and rigidus were not found. 38 C.F.R. § 4.71a, DC 5280-5281. Regarding hammertoes, while they were found in 2012, this code does not provide increased ratings for this period. See 38 C.F.R. § 4.71a, DC 5282. Since April 18, 2013 In April 2013, the Veteran received a new VA examination. At this point in time, the Veteran had hallux valgus (asymptomatic), past stress fractures of both mid-foot regions and bilateral capsulitis of the talonavicular and naviculocuneiform joints. He also had mild hind foot varus when weight bearing with normal alignment of the tendo-achilles bilaterally as well as metatarsalgia. He did not have hallux rigidus, claw foot/pes cavus, pes planus, hammertoes, bilateral weak foot, or scars. The Veteran complained he could not stand for long periods of time due to foot pain, cramping with weight bearing, and severe pain in the first tarsal and metatarsal areas bilaterally. Medication offered slight relief and he used shoe inserts constantly. For both feet, the examiner opined he had severe malunion or nonunion of the tarsal or metatarsal bones but no other foot injuries. While arthritis was not reported, he did have bilateral capsulitis and right talonavicular and navicular-cuneiform stress reactions in both feet. He reported functional limitations with standing for 15 to 20 minutes or walking less than 30 yards causing his feet to become numb. Again, the Board finds that DC 5283 regarding the tarsals or metatarsal bones most accurately addresses the level of involvement and nature of the bilateral foot symptomatology. This code is substantially similar to DC 5284 anyway, and DC 5279 regarding metatarsalgia would not provide an increase as the Veteran is receiving 30 percent for both feet during this time period. Hallux valgus was asymptomatic and, in any case, would not provide for an increased rating beyond 30 percent. The Board finds that reported functional limitations are contemplated in DC 5283. Given the competent and credible medical and lay evidence of record, the Board does not find that the symptomatology more nearly approximates increased ratings beyond 30 percent. The April 2013 VA examiner did not find loss of use of the foot. Evidence of record is also absent any findings of pronounced, bilateral flat foot, weak foot, bilateral claw foot (pes cavus) or hammertoes for the assignment of any higher rating under alternative rating criteria. 38 C.F.R. § 4.71a, DC 5276-5278, 5282. Similarly, hallux rigidus was not found. 38 C.F.R. § 4.71a, DC 5281. Extraschedular consideration The Board has also considered whether referral for an extraschedular evaluation is warranted. The question of an extraschedular rating is a component of a claim for an increased rating. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). Under the provisions of 38 C.F.R. § 3.321(b)(1) (2012), the Under Secretary for Benefits or the Director of the Compensation Service is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available scheduler evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the Board finds that the rating criteria reasonably describe his disability level and symptomatology, and provide for higher ratings for additional or more severe symptoms than currently shown by the evidence. As detailed, the Veteran's foot complaints are directly contemplated by the Rating Schedule's established criteria, and the assigned rating is adequate. No further analysis is necessary under Thun, 22 Vet. App. 111. Referral to the Under Secretary for Benefits or the Director, Compensation Service, under 38 C.F.R. § 3.321 is not warranted. ORDER For the period prior to April 18, 2013, an assignment in excess of 10 percent for a right foot disability is denied. For the period since April 18, 2013, an assignment in excess of 30 percent for a right foot disability is denied. For the period prior to April 18, 2013, an assignment in excess of 10 percent for a left foot disability is denied. For the period since April 18, 2013, an assignment in excess of 30 percent for a left foot disability is denied. REMAND VA has a duty to obtain service treatment records if relevant to the claim under 38 C.F.R. § 3.159(c)(2)-(3) (2012). The evidence reflects that National Guard records may be outstanding in this case because in August 1983 only some service treatment records were submitted by the Veteran's representative and an August 1983 reply from the service department stated only that there were no records and asked that the request be re-submitted. Also, the April 2013 VA examination report contains an inaccuracy and arguments raised in the July 2013 informal hearing presentation (IHP) should be addressed. The examiner stated there were no incarceration records in file from 1998 to 2010; TDCJ records are in the file and must be reviewed prior to a decision. Additionally, the July 2013 IHP (available on Virtual VA) raises several arguments with citation to medical literature; these arguments should be referenced in the examiner's opinion and addressed. Accordingly, the case is REMANDED for the following action: 1. First, request all service treatment records for the Veteran, including those associated with service in the National Guard, and associate them with the file. If they are unavailable, notify the Veteran and document this fact in the file. See 38 C.F.R. § 3.159(c)(2)-(3), (e) (2012). 2. After the above development has been completed, return the claims file to a VA examiner for an opinion as to the etiology of the HCV. The opinion should reflect that the entire claims file was reviewed, to include any new service treatment records and all TDCJ records. The examiner should provide an updated opinion as to whether the HCV is likely, less likely, or at least as likely as not (50 percent or greater probability) due to or a result of military service. The examiner should additionally: * discuss the Veteran's risk factors before and after service and * address the July 2013 IHP with citation to medical literature. All opinions must be accompanied by reasons with citation to accurate facts. 3. Following the above development, the RO/AMC should review the claims file and re-adjudicate the Veteran's claims for service connection for HCV. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs